May It Please The Internet

This week on May It Please the Internet, John is joined by Chris Carroll to discuss the Open Gaming License, D&D, Wizards of the Coast, and what you can & can’t do with IP Properties. Listen in as they talk about the history of D&D, first publishing, and the Satanic Panic, as well as the prior license, Copyright Law and how it covers content.

May It Please The Internet is a podcast brought to you by Revision Legal

Intro

• Lots of questions about start ups, to us, these are not all that interesting. Reality is a true start up is going to do the bare minimum to get going. Ownership agreements between the founders are probably the most important, after that, it is completely dependent on what the business can afford.

• More interesting is to open the hood on businesses that have been around. What should you have in place if you have been around for 3, 5, 10 years. What could be considered a luxury for a start up can become an absolute need for a more mature business

• No business is perfect, you won’t have all of these

• But end of the year is approaching, it is time to pull out that dusty list of legal needs and start making plans to get things done

  1. Organizational Structure

  a. Internal corporate documents (bylaws/shareholder agreement/operating agreement)

i. Clear outline on ownership/managers

ii. Buy/sell agreements

b. Relations with investors

You should be able to clearly, and without question, answer:

• all questions about your cap table, capital accounts, rights of first refusals, and your complete org structure

• know your (and other owners) rights about selling

• what happens if people die, divorce

• key man insurance (and how to distribute the money)

If you exit, this must be 100% clear or it will cause problems.

2. Contracts

a. Employment agreement

i. Non-compete

ii. Confidentiality

iii. Work for hire

b. Independent contractor agreements

i. Work for hire

c. Phantom stock / incentive agreements

d. Employee handbooks

i. Workplace policies (time off, sick leave, benefits, etc)

e. Service agreements (how you get paid)

f. Real terms of use

g. Real privacy policy

h. Real copyright policy (copyright registered agent)

i. Manufacturing agreements

j. Insurance

ii. Property/personal property

iii. Key man

iv. health

You should have organized documents that all have signatures. You will need to produce all of these documents in an exit.

3. IP

a. Trademark

i. Federal/state registrations

ii. Process to clear names before investment

iii. Trusted counsel

iv. Make sure registrations are owned by the correct entity

v. International trademarks

1.US only good for US

2.Take advantage of Madrid

3. File in “first to file” countries - china

b. Copyright

i. Understanding what can/should be registered

1. Industry specific but advantages for all

   c. Patent

i. Knowing basics of when/how to act if you want to seek patent protection (or at least who to ask)

ii. Contracts with employees help to make sure you have all rights

d. Trade secrets

i. What they are

ii. How you maintain trade secrets

You should be able to:

• Explain and document all cases all alleged infringement on your IP and threats against you

• Know where the business could invest in more IP protections

• Have a domain portfolio of domains registered for your brand, including defensive registrations to cover typos or even gripe site type domains

  1. Taxes

     a. Understand tax structure, tax planning

i. What states for sales tax – nexus

b. Trusted CPA

c. Paying quarterly

d. Taking advantage of tax laws

i. Cars

ii. Spouses / kids

e. Not trying to nickel and dime, just do it right

1. Accounting

   a. Clean books

In this episode, John Di Giacomo and Eric Misterovich dive into the issues surrounding lawsuits over the Americans with Disabilities Act (ADA) and ecommerce websites.

• Intro

• World of scammy lawsuits is nothing new, but there is a popular trend impacting ecomm store owners: lawsuits claiming websites are not ADA compliant for the visually impaired

• Before we dive into this topic, let’s visit the history of shitty lawsuits attorneys/companies file in the online space

  • copyright trolls

    • stock photo companies looking for unauthorized uses

    • Freeplay music

      • Confusing on what license you actually have / synch license

    • bit torrent lawsuits on porn

      • Prenda Law

        • the CD CA called it a :porno-trolling collective” whose business model relied “on deception” and resembled a racketeering enterprise

        • they basically uploaded porn to bit torrent networks then threatened to sue anyone that downloaded it, or that had their IP address implicated

        • there was no real plaintiff

        • threatened public exposure of the Ds downloading porn and would settle for $4,000, or a bit less than the price of defense

        • always one named defendant that was basically in on it

        • Steele got 5 years

        • Hansmeier got 14 years

    • Always looking for a quick settlement

• ADA Lawsuits

  • ADA/state law, in general, says that all persons are entitled to full and equal accommodations in all business establishments”

  • These all follow a relatively similar pattern

  • A plaintiff files suit on behalf of a class arguing that the defendants website cannot be operated by the plaintiff, who is visually impaired

  • They ask for an extreme amount of money, $30-50,000

  • But they are willing to settle for far less, often times under 10,000

• What do these plaintiff have to prove?

  • These plaintiffs must have “bona fide intent” to use the D’s services

    • This leads to some ridiculous examples of blind people wanting to buy guns, cars, etc

  • There was also a defense as to whether the ADA applied to online businesses, or whether a “brick and mortar” store only fell within the ADA’s “public accommodation” language

    • This used to be somewhat up in the air

    • But in August 2022, a CA COA ruled that the CA ADA law, the Unruh Civil Rights Act, did not apply to websites.

    • This practically killed ADA cases in CA, but not in other states (NY, PA, etc).

• What should store owners do

  • WCAG 2.1 standards

    • People can use screen readers and obtain a phone number to call

    • Contrast in text

  • Not ignore lawsuits

In this episode of May It Please The Internet, John Di Giacomo and Eric Misterovich talk about work for higher agreements and assignment clauses and how you get stuff from one place to another when you're working with contractors and employees in the context of intellectual property law. It can be a problem in a business sale. It has killed deals and cannot be stressed enough how important this type of stuff is. There are very few things that will kill an M&A deal in the e-commerce space and not having the IP rights is like point number one.

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May It Please The Internet is a podcast brought to you by Revision Legal.