Monday, May 9, 2016

How to Collect Your California Small Claims Judgment


Obtaining a money judgment in your favor does not guarantee that you will actually get paid. The court will not collect the amount due, although it will issue the necessary orders to help you. Your judgment is good for 10 years and renewable (to extend its 10 year expiration date) after that.


When can you start the collection process?

You can start when either the time for appeal runs out (30 days after the initial judgment) or after you win the appeal and the judgment is sent back to the small claims court (this usually takes 10 days after the appeals decision). A debtor must send you a Judgment Debtor's Statement of Assets (Form SC-133). Some courts mail a Form SC-133 to the debtor together with the original judgment.


What can you do to collect?

It’s illegal to harass the debtor (party that owes you money) but sending a letter to remind they owe you money pursuant to the court order enclosed is fine. Consider offering to negotiate a payment plan. Keep track of your expenses because some of them may be reimbursed.


Debtor’s examination

After the debtor ignores both you and the Judgment Debtor's Statement of Assets form, you can ask court for sanctions and to schedule a debtor’s examination. This procedure compels the debtor to appear in court and answer your questions about his or her assets under oath. This way you find out which, if any, assets it is best to go after first. Ask about income sources, employment, property locations, bank accounts, stocks, etc. You have the right to subpoena debtor’s paystubs, deeds and similar documents that prove the value of the assets. You can even ask the judge to order the debtor to turn over cash in his or her wallet to you right there.


To start the debtor’s examination process, you must fill out:

1) Application and Order to Produce Statement of Assets and to Appear for Examination (Form SC-134) and attach a blank Judgment Debtor's Statement of Assets;
2) Small Claims Subpoena for Personal Appearance and Production of Documents at Trial or Hearing and Declaration (Form SC-107).
File these forms with the court and make sure to serve them on the debtor.

Ignoring this hearing has potentially serious consequences for the debtor. Failure to show up may result in a bench warrant for the debtor's arrest. The judge will most likely not be present, so you will have to ask the questions yourself. If you have any problems with the debtor at the hearing, or the debtor fails to show up, you can ask the clerk to go get the judge.


Get a Writ of Execution

Once you know what debtor’s assets can be used to satisfy your judgment, the first step to those assets is usually to ask the court for a Writ of Execution (Form EJ-130).  Writ of Execution directs the sheriff or marshal to enforce the judgment in the county where the debtor’s assets are located. Writ of Execution is good for 180 days. Courts handle this procedure differently, so contact your particular judgment court for details.


Garnish debtor’s wages, bank account or a safe deposit box

Drop off the Writ of Execution and an Application for Earnings Withholding Order (Wage Garnishment) (Form WG-001) at the sheriff’s or marshall’s office. You may collect up to 25 percent of the amount over the federal minimum wage that the debtor earns, if the debtor is employed by someone else. You can’t garnish a self-employed debtor’s wages. You will have to hire a process server or the sheriff/marshall to serve papers on the debtor’s employer.
Put a lien on the debtor’s real property

A lien allows you to get paid, with interest, when the debtor tries to sell or refinance a house, land or other real property. To avoid waiting for the debtor to sell/refinance, you can also try to foreclose on the lien, if there is enough equity, by forcing the debtor to sell now and pay with the proceeds.


Put a lien on the debtor’s lawsuit

If you find out that the debtor has a lawsuit against another party, for approximately $25 you can put a lien on the money that the debtor will be entitled to receive if the lawsuit is successful.


Put a lien on debtor’s personal property

You can try to put a lien on the debtor’s car, electronics, jewelry, coin collection, etc. The cost of putting a lien on a personal property often does not make it worth the effort.


Ask a lawyer or collection agency for help

A lawyer or collection agency will help you locate debtor’s assets and collect on your judgment for a percentage of what they manage to recover.



Thursday, May 5, 2016

How to Register US Trademark and Copyright

TRADEMARK


Trademark is a brand name. You can register your business name, logo, and your product names. For example, McDonald's, the double arched "M" symbol, and Big Mac are all trademarks. Trademark/service mark may include words, names, symbols used, or intended to be used, in commerce to distinguish your goods or services from goods or services of others. The terms “trademark” and “service marks” are often used interchangeably, and both offer the same protections. If you use your trademark or service mark in interstate commerce (you do business with customers in other states or internationally) you can register your mark both at the federal and state level. If you do business exclusively within your state, you can register at the state level.


Federal registration

Federal trademark or service mark registration offers your



Thursday, April 21, 2016

Fan Sues Kanye West and Tidal for $84M


On Monday, a Kanye West fan has filed an $84M lawsuit against the rapper and a streaming service he co-owns, Tidal.  Plaintiff claims West fraudulently promised fans that his album, The Life of Pablo, would be available only on Tidal. So, many fans signed up for Tidal because they believed it was the only way to hear the album. 




But a month and a half later, the album was subsequently released for free on Apple Music and Spotify. West also began selling the album through his own online marketplace. Complaint alleges that, because of West’s false promise, Tidal subscriptions tripled from 1 million to 3 million subscribers in just over a month. Plaintiff claims that the 2 million new subscribers and their personal information are worth $84 million, based on “publicly available acquisitions as a comparable metric.” Plaintiff has asked the court to certify his proposed class action lawsuit, which would enable those two million new users to join in the lawsuit and share in a settlement. Plaintiff also asks for an “order requiring Tidal to delete the private information of Plaintiff and the Class members that it collected, cancel all outstanding negative options of any free trials created during the class period, and cease any monetization efforts relying on the illegally obtained information.” 

Tidal and Kanye West have 30 days to respond to the complaint. 




Wednesday, April 20, 2016

Software Licensing Issues for U.S. Businesses in Europe and Japan


1. Introduction


2. European Consumer Protection

    a. Unfair Contract Terms Directive
    b. The Distance Selling Directive

3. IP Protection for Software in Japan


4. Reverse Engineering Clauses

    a. Unites States
    b. Europe
    c. Japan

5. Quickwrap

   a. Shrinkwrap
         United States
         Europe
         Japan
    b. Clickwrap
         Unites States
         Europe

6. Practice Pointers

    a. Checklist
    b. Recommendations

7. Conclusion




1.      Introduction

Software licensing is the third largest industry in the United States.[1] Most leading software companies are incorporated in the United States, Japan, and European countries.[2] However, since 65% of practicing U.S. attorneys do not address the UNIDROIT Principles of International Commercial Contracts,[3] or other international norms, it may surprise many U.S. counsel that a standard U.S. software licensing contract will often violate European consumer law, generate bad publicity and result in fines. AOL France learned the hard way in 2004, when a French court invalidated nearly every clause in its standard subscriber contract,[4] even though AOL had localized and revised the agreement to suit the local market in response to requests from a consumer protection agency. The court awarded ?30,000 in damages, levied a fine of ?1,000 for each day the invalidated clauses remained on AOL?s website, and ordered substantive parts of the court?s decision be published on the AOL?s website and three national daily newspapers. The reviewing court affirmed on all counts.[5]

The experience of AOL in France demonstrates a large discrepancy between the U.S. and EU online consumer agreements. U.S. courts have routinely enforced many agreements similar to AOL France?s, even with terms less favorable to consumers.[6] As the software industry increasingly goes global, corporate counsel must not only stay on top of foreign regulatory developments but be comfortable working in a wide variety of legal traditions as well.

Software licensors need to determine whether they can realize their investment and protect their source code in high piracy countries, especially those with a high rate of technological literacy.[7] While developing countries currently play a relatively minor role in the global software industry, China, Russia, and Brazil are showing rapid progress.[8] Due to rapidly growing software markets of China, Russia, and India, the worldwide software theft losses exceeded the $50 billion mark. Leading software makers estimate the 2009 rate of global software piracy at 43%, with Georgia and Zimbabwe topping the charts with a piracy rate exceeding 90%, and the United States showing the lowest worldwide rate of 20%.[9] Approximately 50% to 90% of software available on auction websites such as eBay is pirated.[10]

U.S. counsel needs to gain familiarity with various foreign intellectual property protection regimes because software licensing laws are generally not extraterritorial.[11] Nevertheless, a number of high piracy countries agree to enforce U.S. intellectual property rights as a condition of joining into trade alliances. For example, a signatory country of the Berne Convention must grant the same protection to intellectual property rights of citizens of other signatory states as it grants to its own nationals. Prior to the Berne Convention, nationals of their respective countries had no formal copyright protection abroad. The Berne Convention signatories went on to create the World Intellectual Property Organization (WIPO), which currently consists of 184 Member States and is now an agency of the United Nations devoted to developing an international intellectual property system.[12] Under the Trade-Related Aspects of Intellectual Property Rights (TRIPS), developing countries must accept minimum intellectual property rights in exchange for access to lucrative markets.

A typical U.S.-style contract, based on principles of free market economy, will be viewed as one-sided and unconscionable in Europe and Japan, where lawmakers place more emphasis on providing consumers with a social safety net.[13] A software licensor cannot freely require licensees in those major markets to arbitrate away from home, waive basic consumer rights, reverse engineering rights, choice of law, or cooling off periods for distance contracts. This paper analyses some of the most significant points of tension in software licensing law between the U.S. and the next two biggest software markets - EU and Japan. Practice pointers at the end will help U.S. counsel to avoid costly mistakes and bad publicity by effectively localizing contract terms and business strategies to account for differences in law and culture.


2.      European Consumer Protection

The considerable differences in contract law in the U.S. and EU reflect different perceptions about the role of government in regulating markets. The U.S. has traditionally been skeptical about government regulation while placing more emphasis on market-driven institutional arrangements.[14] Digital consumer legislation has not had great success in the U.S.[15] The most famous pro-consumer legislation proposed in the recent time, the Digital Media Consumers' Rights Act (DMCRA), [16] has been introduced into Congress three times without success. [17]

On the contrary, as evidenced by the number of recent major consumer protection laws and



Tuesday, April 19, 2016

How to Draft the Terms of Use for a Social Media Platform


Here are some important sample clauses to consider including in the Terms of Use of a social media service to maximize liability protection. There is no need to make the Terms complex. Their main purpose is to state that you are not responsible for users' actions or content, site/app is to be used at own risk and there are no guarantees of any kind. Users can't steal and copy your content. 

No need to list all the specifics and exact mechanics of your website in the Terms, - you can do all that on other site pages. The Terms of Use need to stay concise and to the point, so that users actually read them instead of skipping through the important provisions buried in unnecessary stuff.


Title
Purpose
Sample Language
Your Acceptance
To explain to users that these Terms constitute a legally binding contract even for those users who are just browsing without registering an account.
These Terms of Use (the “Terms”) are legally binding on you when you visit www.____________.com (the “Service”) or access ____________ mobile application (the “App”) even if you do not register an account or make a purchase. The Service and the App are collectively referred to herein as the “Service.” By accessing the Service, you indicate your acceptance of these Terms, as well as the Privacy Policy available at www.___________/_______. If you disagree with any provision of the aforementioned documents, you must exit the Service.
Neutral Venue
The law shields neutral eCommerce service owners from liability for   materials/transactions of the service users, if:

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material;
(4) no copy of the material made by the service provider is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients; and
(5) the material is transmitted without modification of its content.
17 U.S. Code § 512.

In other words, service owners are legally protected if their role is simply to provide a neutral platform for users to transact. The Neutral Venue clause makes it clear that the owner is neutral and is, therefore, entitled to full   liability protection.
Our Service is a neutral venue. We have no control over user conduct and transactions. We disclaim all liability arising out of users’ activities or related to information provided to or by the Service users
Personal Safety
To stress that users are responsible for their own safety and the platform owner will not be liable for whatever arises out of users’ interactions with each other.
IP Ownership
To point out that the  platform owner owns the service and its content
We own all intellectual property rights to the Service. Service features, look and feel, design, registered and unregistered trademarks are protected by [Country] and international copyright, trademark, trade secret, and other intellectual property or proprietary rights laws.
Your Content
- To explain what rights to user-submitted content does the platform owner have.
- To repeat that users are solely liable for the content they submit.
Twitter: “You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndicati



Monday, April 18, 2016

Email Privacy Act Finally Moves Forward in Congress


On Wed, the House Judiciary Committee has unanimously approved the Email Privacy Act, a bill to protect Americans’ emails from government surveillance. The bill would reform a 30-year-old Electronic Communications Privacy Act (ECPA) by requiring law enforcement to obtain warrants from court before compelling companies to hand over access to emails or other electronic communications, regardless of how old they are.  A law enforcement agency is required to provide a customer whose communications were disclosed by the provider a copy of the warrant and a notice that such information was requested by, and supplied to, the government entity. The government can request delays of such notifications; suspects in the investigation wouldn't necessarily realize that a search is taking place. 


The bill’s original version enjoyed a remarkably large



Friday, April 15, 2016

Как создать Условия пользования коммерческим сайтом на английском (шаблоны)


Вот набор пунктов, которые можно использовать при составлении Условий пользования коммерческим сайтом и/или приложением на английском языке для максимальной защиты от потенциальной ответственности.

Заголовок
Цель
Пример
Your Acceptance
- Объяснить пользователям, что эти Условия обязательны даже для тех посетителей, которые не регистрируют аккаунт и ничего не покупают.

- Сделать Условия применимыми как к сайту, так и к мобильному приложению.



These Terms of Use (the “Terms”) are legally binding on you when you visit www.____________.com (the “Service”) or access ____________ mobile application (the “App”) even if you do not register an account or make a purchase. The Service and the App are collectively referred to herein as the “Service.” By accessing the Service, you indicate your acceptance of these Terms, as well as the Privacy Policy available at www.___________/_______. If you disagree with any provision of the aforementioned documents, you must exit the Service.
Neutral Venue
Объяснить, что это нейтральная платформа и, следовательно, собственник/оператор защищен законом. Американский закон (DMCA) защищает операторов нейтральных платформ от ответственности за материалы, размещенные там пользователями. Это если материалы были размещены третьими лицами автоматически, без прямого участия оператора и без модификации оператором. 17 U.S. Code § 512.
Our Service is a neutral venue. We have no control over user conduct and transactions. We disclaim all liability arising out of users’ activities or related to information provided to or by the Service users
Personal Safety
Объяснить, что оператор не несет ответственности за личную безопасность посетителей и трансакции между ними.




IP Ownership
Объяснить, что этот сервис - собственность оператора, который обладает и интеллектуальными правами на контент, содержащийся на платформе.
We own all intellectual property rights to the Service. Service features, look and feel, design, registered and unregistered trademarks are protected by [Country] and international copyright, trademark, trade secret, and other intellectual property or proprietary rights laws.
Your Content
- Заявить о том, какие права (лицензию) на контент пользователей приобретает оператор сервиса после загрузки контента на сайт.

- Поторить, что пользователи несут полную ответственность за свои материалы, размещенные на сайте.


Twitter: “You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.

Such additional uses by Twitter, or other companies, organizations or individuals who partner with Twitter, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.

We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be syndicated, broadcast, distributed, or published by our partners and if you do not have the right to submit Content for such use, it may subject you to liability. Twitter will not be responsible or liable for any use of your Content by Twitter in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.”

Google: “When you upload, submit, store, send or receive content to or through our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services. Make sure you have the necessary rights to grant us this license for any content that you submit to our Services.
Our automated systems analyze your content (including emails) to provide you personally relevant product features, such as customized search results, tailored advertising, and spam and malware detection. This analysis occurs as the content is sent, received, and when it is stored.”
Photographs/Images
Особые положения о фотографиях (особенно, если в них есть узнаваемые люди).



Thursday, April 14, 2016

(Скидка 20%) Регистрация оффшорной компании в шт. Делавэр


Адвокат С. Токмаков зарегистрирует LLC или корпорацию в штате Делавэр для нерезидента США.

Обычная цена: $499 
Цена со скидкой: $399


Цена включает:
Ко​нсультацию (по желанию клиента)
Анонимную регистрацию (по желанию клиента). Закон шт. Делавэр позволяет адвокату расписаться на учредительных документах. Как потом клиенту доказать, что это его компания? Адвокат предоставит клиенту Statement of Incorporator, т.е. декларацию о том, что компания была создана по заказу данного клиента. Тем не менее, если вы будете вставать на федералный налоговый учет, то придется предоставить имя ответственного лица 
Все регистрационнные сборы
Сервис Зарегистрированного Агента (для нерезидентов Дэлавэр) на один год
Employer Identification Number (EIN) для постановки на федеральный налоговый учет. EIN требуют в американских банках для открытия счета
- Пересылку документов по почте в США (в др. страны - за доп. плату)
- Шаблон устава
Зачем нужна компания в Делавэр и подробнее о процессе регистрации:
Как зарегистрировать оффшорную компанию в Делавэр, США






Wednesday, April 13, 2016

Professional Opinion Letters for EV SSL



What is EV SSL and why do I need it?

SSL is a combination of cryptographic protocols designed to provide high level of security over the Internet by encrypting data exchanged between the parties. When your customers see the padlock icon, "https" prefix and the green address bar in the URL field of their browsers, it shows the highest level of security and verification available on the Internet. Your customers are then more likely to share their personal information with your shopping cart. Less expensive standard SSL Certificates do not have the trusted green browser bar.


How to obtain EV SSL?

You can obtain an Extended Validation Secure Sockets Layer Certificate (EV SSL) from the Certificate Authorities (CA) such as GoDaddy, GeoTrust, VeriSign and others. Prior to issuing an EV SSL to you, the CA will want to verify that you are a legitimate business. If they can’t easily verity that themselves (e.g., if you are a pretty new business), the CA will request you to verify your business information by obtaining a Professional Opinion Letter from a licensed attorney or a certified accountant.

The exact verification requirements are different from one CA to another but they generally need to verify that:

Your company is a properly registered business.
You have the necessary authority to act on behalf of that business.
Your DBA’s, if any, are valid.
Your business address and phone number are legitimate.
You have the rights to your domain name.
You have a valid bank account.
An attorney or CPA who signed your Opinion Letter has the required credentials. The CA normally follows up with an attorney/CPA by phone or by mailing a copy of the Opinion Letter back to the atty/CPA.


What documents do I need to provide to get an Opinion Letter?

I would normally need:
- Copies of the forms received from your CA (they normally either give you a list of requested info or a sample opinion letter). Examples: GoDaddyGeoTrust, Thawte, Symantec.

- Incorporation documents (Certificate of Incorporation, Certificate of Formation, etc.)

- Bylaws (for corporation), Operating Agreement (for LLC), or company resolution which shows what is your title within the company and proves you can act on its behalf.

- Lease or correspondence addressed to your physical business address. No P.O. boxes.

- Copy of a recent phone bill (if the phone number needs to be verified).

- If a WHOIS search for your domain name shows your company name and address, this is sufficient to verify your Domain. Otherwise, I’ll need a receipt for payment for your web domain.

- Statement from your business bank account.


How much will EV SSL Professional Opinion Letter cost me? 

For most businesses with a physical U.S. address, I can draft the Opinion Letter and respond to the CA’s follow-up inquiries for $99. I can usually get it done within three business days from receiving all the necessary documents and information from you.

I provide EV SSL Letters for Certificate Authorities such as:
GoDaddy
Starfield Technologies
GeoTrust
Thawte
VeriSign
Network Solutions
Trustwave
Webfusion UK
123-reg.co.uk
GlobalSign
DigiCert
... and many others.






Monday, April 11, 2016

(Free Template) Executive Compensation Agreement



In this template, executive's compensation is tied to company performance. Salary is to be calculated on the basis of monthly reoccurring revenue of the Corporation. The executive will receive stock options if the company achieves reoccurring revenue milestones.

Here it is in a PDF format.



EXECUTIVE COMPENSATION AGREEMENT


This Agreement is made this ____ day of _____________, 2016 (the “Effective Date”), by and between __[Corp Name]_______________ (the "Corporation"), of ___[address]_____________________________, and, _______[Name]_________ (the “President”), of ___[address]_____________________________.  The President accepts employment as President of the Corporation on the following terms and conditions:


  1. TERM OF EMPLOYMENT
By this Agreement, the Corporation employs the President, and the President accepts employment with the Corporation. The term of the President’s employment shall be three years, beginning on the Effective Date above (the “Term”), unless his employment is sooner terminated pursuant to the provisions of this Agreement. Commencing on the third anniversary of the Effective Date, the Term shall be automatically extended for additional consecutive three-year periods.

  1. COMPENSATION
2.01.    As compensation for all services rendered under this Agreement, the President shall be paid by the Corporation a salary to be calculated on the basis of monthly reoccurring revenue (MRR) of the Corporation according to the table below. President’s salary shall be payable in pro-rated monthly installments.

MRR
Salary per year
From 0 to $25,000
$_________
From $25,000 to $50,000
$_________
Over $50,000
$_________

2.02.    The President is authorized to incur reasonable business expenses in the performance of the President's administrative duties under this Agreement.  The Corporation