The Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA) have stalled – because of widespread opposition from internet companies – including Google, Wikipedia, etc.

It’s a complex debate:  http://www.pcworld.com/article/248298/sopa_and_pipa_just_the_facts.html

Laws change slowly and lag behind technology advances.  Using laws to block technology advances that build on the state of the art of the internet is not a good idea. 

Intellectual property creators need to be compensated for their works.  Allowing copycats to freely use intellectual property created by others, without compensation, is also not a good idea.

So, what can you do to protect your business and intellectual property from copycats?

I recommend a combination of legal and business strategies.

Legal strategies include registering copyrights and using contracts to protect your “rights.”  Under current copyright law, you can recover statutory damages and attorney fees for unauthorized use.  http://en.wikipedia.org/wiki/Statutory_damages_for_copyright_infringement

Registering your copyright is a good business practice, and a prerequisite to enforcement.  For smaller companies, enforcing your rights through the legal system is, unfortunately, very slow, time consuming and expensive – and favors the deep pockets of big corporations.

Smaller businesses need to be creative and combine business and legal strategies. 

So, in addition to taking advantage of legal protections by registering copyrights and using contracts, it is important to anticipate copying.  Who is likely to use your work?  Will your clients bring your training program in-house and not pay you?  Will other professionals in your field find your work a useful building block for their work?  Is there a way to use contractual terms to compensate for unauthorized uses?  You can use Web tools, online forums and feedback loops and provide terms for people to use your work.

 I am always interested in learning from others —  Please post a comment to let me know what you’ve done to protect your work/intellectual property from copycats?

It’s that time of year – to make New Year’s resolutions. 

Can you remember what your resolutions were last year?  Did you implement them? 

This year, I suggest that you keep it simple and just make one resolution.  Write it down and put it in a visible place on your desk.

As you review the overall performance of your business for the year, ask yourself what problems recurred.

Common recurring problems are:  accounting-related; employee-related; out of scope projects; late delivery; last minute cancellations, …

If you eliminate recurring problems, you free up energy to improve your business. 

Will you let me know what recurring problem you decide to fix?

Please post a comment.  Thanks!

Is this “copyright infringement” or “fair use” in the digital age?

The lawsuit against Google has been winding its way through the courts since 2005.

In March 2011, a proposed settlement was rejected by Federal Judge Chin, apparently because of the number of parties that objected to the terms of the settlement, the fact that it was an “opt-out” (rather than an “opt-in”) settlement and included a “forward looking business model” that benefited Google.  For a readable explanation of the situation, see: “A Guide For the Perplexed Part IV: The Rejection of the Google Books Settlement” by Jonathan Bond http://www.arl.org/bm~doc/guideiv-final-1.pdf

While the Court and the parties SLOWLY ponder what’s next, the rest of us have to continue to do business. 

So here’s a quick recap about the current state of copyright:

Copyright protects the way an author expresses him/herself, not the ideas expressed. 

“Fair use” is when you can use copyright protected material (such as text, photographs, illustrations, videos) without payment or permission.  Penalties for copyright infringement are severe.  http://www.researchcopyright.com/article-penalties-for-copyright-infringement.php

With all the information available online, it’s important to understand what you can use without fear of copyright infringement claims.

 (1)  If in “public domain” – you can use the content freely. 

Determining what is in the public domain can be difficult.  http://www.smartfast.com/blog/?s=public+domain

 (2)  If in “copyright” – you can use within the “fair use” doctrine.

Determining what use is “fair use” is complicated. http://www.smartfast.com/blog/what-is-fair-use

(3)  Scan & Snippet display – displaying a small portion of the text, or image.  This is the approach that Google uses – and it has not yet been decided by the Court whether this is “fair use.”

 (4)  Linking – The linking strategy described below seems to fit within the fair use criteria as understood in the U.S.

This link is to updated Fair Use Guidelines for Educators – Code of Best Practices for Fair Use for Online Video, prepared by the Center for Social Media –http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-media-literacy-education

(5)  Creative Commons License – use is allowed as defined by the copyright owner – so you have to check the requirements for each work used.  http://creativecommons.org/

 (6)  Open source – access to software allowed consistent with guidelines.  http://en.wikipedia.org/wiki/Open-source_software

Yes, it is complicated!

Until there is further clarification of copyright law from the Courts or the Congress, here’s what I recommend:

•  If you use a copyright work without permission, I recommend documenting the rationale for why your use is “fair” – you’ll want to quote accurately and briefly, cite the source, and add value by building on – not just copying, but commenting on or criticizing the work.
• If you use content under a license, check the license terms carefully.
• If your use is extensive, it’s wise to get permission from the copyright owner, in writing.

If you found this useful, please post a comment.

1.  Jurisdiction Statement?
 
The Internet makes access to Websites possible from anywhere on the planet. You want to make it clear that your Website is governed by the laws of your selected state. This way, you are less likely to find yourself being sued for violating the laws of some other place.
 
For example, my Website says, “This Website shall be governed by and construed in accordance with the laws of Massachusetts, USA, without regard to its choice of law rules.” http://www.smartfast.com/pages/juris.html
 
2.  Disclaimer?
 
Does your site have a disclaimer? You want to make it clear that people should not rely upon the information without seeking specific advice or checking in for an update. You may want to specify that prices and terms are subject to change.
 
For example: my Website says “The information provided on this Web site is intended as a general overview and should not be relied upon as legal advice.”
 
3.  Copyright notice?
 
Is there a Copyright notice on your Website? While the Copyright notice is not required by law, it is a good business practice to use it to make it clear that you are claiming Copyright protection for the contents of your Website. Copying is rampant on the Internet and if you’ve invested substantial time and effort in developing your Website, it makes sense to put people on notice that you are claiming Copyright protection. For example, my Website says “Copyright © 2000-2011 Jean D. Sifleet, Esq. All Rights Reserved.”
 
It’s even better to register the Copyright – but that’s a topic for another e-newsletter. If you would like more information about registering your Copyright, click here http://www.smartfast.com/blog/faqs-copyright to read my article.
 
4.  Content created by someone else?
 
Is there any Copyright-protected content (created by someone else) on your Website? If your Website has any music, images, quotes or even articles published about your business, you may need to confirm that you have the right to use the content created by other people. The general rule is:   Give credit to the source, “link” – don’t copy and embed.
 
5.  Privacy Policy?
 
Privacy is a growing concern for many people. Government regulations are increasing. For example, there are strict rules about the use of personally identifiable information.
 
My Website says: “Smart Fast® has a firm commitment to protecting the privacy of the information collected on the Web site. The information collected on the site is not shared with nor available for use by the Website host and the site has security measures in place to protect the loss, misuse and alteration of the information under its control. We do not disclose information that you may give us to any outside parties, unless required by law. If you have any questions about this privacy statement, the practices of this site, or your dealings with Smartfast.com, please contact Jean Sifleet.” http://www.smartfast.com/pages/privacy.html
 
In conclusion, your Website is a key component of your overall business. It’s easy to assume that everything is OK. Is it? Take the time to review your Website and ensure that you are up to date and making the best possible use of this powerful business tool.

If you found this information useful, please post a comment.  Thanks!

Sweat equity has elements of both “ownership” and “compensation” – which are related but distinct concepts that frequently get mixed together.

 Ownership means owning a portion of the stock of a corporation or a percentage of the membership of a limited liability company (LLC).  Ownership can be defined in many ways – such as voting and non-voting.  Owners expect to share in the future success of the business.  For “sweat equity” or “earn-in” situations, LLCs provide more flexibility than corporate structures.   The rights and responsibilities of owners need to be clearly defined in a written agreement.

Compensation is payment for services performed and should be designed to reward the behaviors that make the business successful.  Compensation plans can be designed to include incentives, such as bonuses and profit sharing.  Equity (ownership) can be an element of an incentive compensation plan.

Sweat equity for “employees”

Sweat equity for “employees” is usually compensation for “below-market wages” for services performed.  In this case, you can calculate the value of the sweat equity based on market rates.

First you determine the market rate: How much would you pay an engineer to design a prototype?  How much would you pay a market research professional to conduct a survey? 

The difference between current compensation and market rate compensation gives you the uncompensated “sweat.”   With this information, you can quantify the amount of sweat equity – but that’s only part of it!  Then you have to decide how it will be compensated – through deferred compensation, profit sharing, percentage of ownership, or a combination of methods.

Sweat equity for “partners”

Sweat equity for “partners” (owners) is much more complicated to calculate.  While it is easy to quantify the dollars invested in the business, contributions of intangibles such as “know how” and customer contacts are more difficult to value.  Even more difficult is determining the “value” of individual work efforts in different areas related to developing the business – such as IT, Engineering, Sales or Marketing.  Sales milestones are one approach, but that doesn’t work for all situations.

While it sounds nice to say you’re “partners” – and you’ll work things out as you go along – there can be problems!  People have selective memories and there can be misunderstandings.  What happens if participants stop performing or there is a falling out within the team?  You don’t want to find out later that your “partners” had different assumptions.

If you’re considering a sweat equity arrangement -

Whether you’re investing “money” or you’re investing “sweat,” it’s really critical to have a clear written agreement about how the “equity” is earned and what ownership means. 

For the best results, “sweat equity” and “earn-in” plans should be carefully crafted to ensure that the goals of the participants are aligned with the goals of the business.  The plan needs to include a clear valuation methodology, definition of participant responsibilities and restrictions on ownership transfer and buy-back provisions. 

In conclusion, “sweat equity” and “earn-ins” can be a great way to get a business started and provide incentives to employees.  But, in my experience, if the parties can’t get to an agreement early on about how the “sweat” equity will be earned and ownership allocated, it’s a warning of problems ahead.

In the workplace, employers set the standards for conduct and acceptable speech.

Outside the workplace, employees are free to say and do what they wish (within the boundaries of the law).

With Social Media, personal conduct quickly becomes public and can spill over into the workplace with negative implications to an employer.

Smart companies provide guidelines to employees about what is and is not acceptable in their personal use.

But first, what are your business goals for Social Media?

What can you/your company gain from using Social Media?

Social Media is rapidly changing the way we get information.  It’s a new skill – and we all have to adapt to the rapidly changing marketplace.  While you can’t manipulate and control the social mediums, you can articulate goals and guidelines for usage.

Used strategically, Social Media can help companies gain visibility and insights from dialogues with customers.  For example, independent customer reviews are proving to be highly influential in customer business decisions.  You can learn a lot from these reviews.

Business goals should drive your policy for usage of Social Media. 

When you know what you are trying to accomplish,  you can define guidelines for employee use of Social Media – both in the workplace and personally.

Some key points to keep in mind:

1.  It’s public.

While privacy settings offer some security, there are enough examples of security breaches to warrant caution.  Don’t put anything on-line that would be embarrassing to a prospective employer or customer.

2. Respect confidential information.

Be cautious about disclosing confidential, proprietary or trade secret information – and do not discuss company strategies, financials, or product developments.

3. Respect Copyright and Fair Use.

Don’t copy.  If you quote or cite sources, link to the reference if possible.

4. Add value.

On-line dialogues are enriched by multiple perspectives.  When criticizing, commenting or sharing insights, strive to verify facts and provide reasons to support your opinions.

5. Be authentic.

If you are expressing your own opinion, be clear that it is your personal opinion and not that of your employer.

6. Misuse can result in termination of employment.

Comments or conduct that reflects negatively of the employer can be grounds for termination.

NOTE:  It’s important to remember that employers cannot forbid all employee criticism.  Under the NLRA (National Labor Relations Act), even nonunion employers cannot prohibit employees from discussing the “terms and conditions of their employment.”  For more information:  http://en.wikipedia.org/wiki/National_Labor_Relations_Act

Bottom line, your Social Media Policy needs to reflect your business goals and should be reviewed by a knowledgeable business attorney.

How do you use Social Media in your business? 

Please post a comment on my blog …  Thanks.

The book is inspiring –  with the stories and experience of thirty successful women — and the patterns reinforced with her thirty years of coaching experience.   I am delighted to have been included in the book.

If you, or someone you know, is looking for a guide to re-invent yourself — the first step is to get your creative juices going.  Gail’s book is a great way to jumpstart the process.

To order:   http://www.amazon.com/gp/product/1573244937?ie=UTF8&tag=creativesucce–20&linkCode=as2&camp=1789&creative=9325&creativeASIN=1573244937

Check out:  http://www.creativesuccess.com/

With compelling stories and diverse examples (from a broad range of occupations including surgical teams, airline pilots, complex construction projects with many subcontractors, restaurants consistently delivering complex menus, and financial analysis), Gawande shows how checklists reduce errors in complex tasks and increase efficiency. Frequent errors can be eliminated by the systematic use of a well-designed checklist.

The Surgical Safety Checklist is one page – and is used by the World Health Organization (“WHO”) worldwide with great results in improving patient outcomes (and preventing common infections). Check out: http://gawande.com/the-checklist-manifesto

Well-designed checklists are concise, with specific responses required, and have been validated by front-line users. Checklists are not just a list of tasks; they also help to ensure communication between the members of the team. Team checklists can be designed to be read aloud so that team members verbally confirm – that way, you don’t inadvertently skip a step, forget to ask an important question, or miss important information known only to one member of the team.

Remember the plane that landed safely in the Hudson River after bird strikes caused it to lose power in both engines? Who would think there was a special checklist for that situation? Pilot Sullenberger (“Sully”) and his team were highly experienced and systematically used checklists to help land the plane and save all aboard.

The well-designed checklist transforms knowledge into simple, usable, accessible information, so that you don’t have to count on your memory. It reminds you of the important steps and questions. Sub-checklists should be used for specific situations and unusual situations – like losing power to both engines.

Checklists help you to be Smart Fast! For example, I use a checklist for contract review. It makes the process efficient and thorough. http://www.smartfast.com/blog/?s=checklist

How do you use checklists in your business?   Please post a comment and share what you’ve learned.  Thanks.

http://www.abajournal.com/magazine/article/bottoms_up_litigation_down_microbrewers_forsake_litigation_opt_for_collabor/

Instead of using adversarial legal tactics and engaging in litigation, they had a few beers and decided to “collaborate” and blend the two ales to produce a new one that combines the “best qualities of both.” 

The new brew’s  name is “Collaboration Not Litigation Ale.”

So, the next time you have a dispute, consider having a beer/or other refreshment with your adversary before firing off a cease-and-desist letter.  You may get a better outcome!

The old model was that companies defended their brands – using legal protections such as trademarks and copyrights — to prohibit the ‘pirating’ of their works. The usual legal response to a creative user was to send a nasty cease and desist letter, threatening drastic consequences for the unauthorized usage. 

The new model is to engage users – using web tools such as on-line forums and feedback loops – to “partner” with creative users.  

An example of the old model is Harry Potter. 

When fans started creating their own story lines building on the characters in Harry Potter, Warner Brothers aggressively went after people who referenced Harry Potter on their web sites … That’s a great way to alienate fans. 

Examples of the new model include:

Star Wars: 

By offering an annual contest,  Lucasfilm and AtomFilms showcase and recognize the fan films made by fans of the Star Wars saga.  This approach actively engages the fans in creating new content. 

eBay:

eBay’s user feedback and evaluation system,  creates an on-line community that is “self regulating” empowering users and enhancing the transactions.

Amazon:

Amazon’s user reviews provide value added insight into products and services.

In conclusion, the old model legal protections are necessary and important to protect your works and brand from outright “pirating” by those who would steal your works for their own profit.  The new model approach to encourage user generated content can enhance your business. 

Moving forward, you need a combination of legal strategies (including contract, copyright, trademark …) as well as web-smart strategies (including “terms of use” for user communities).

If you are interested in strategies for engaging your users so that they become “partners” rather than “pirates,” we can help you define “contract provisions” that encourage and reward collaborative behavior for mutual benefit.

If you are considering creating “user communities” – such as online forums or feedback loops — we can help you define  “terms of use” so that your community of users is constructive.