Wednesday, 24 October 2018

Overview of the DMCA

Overview of the DMCA

As an Intellectual Property Lawyer, I’m often asked about the DMCA. You know, copyrights provide an important protection to authors and artists who create original works that are fixed in a tangible form, such as a painting on canvas. When the creator of a work copyrights his or her work, it gives the creator certain exclusive rights. These rights allow the author or artist to preserve the originality of the work and enjoy the benefits of the work’s success without the fear of having someone else copy the work. The copyright owner also has the right to authorize others to perform the exclusive rights or transfer his or her rights to others.

As technology changes, laws must change as well. For example, the Internet has made sharing copyrighted works much easier, effectively diminishing the protections provided by copyrights. The Digital Millennium Copyright Act (DMCA) is an amendment to the copyright laws of the United States, which was enacted in response to the apparent lack of laws that addressed the nature of technology and how it affects the older copyright laws.

Reasons for Enactment of DMCA

The growing opinion of people just before the drafting of the DMCA was that new technologies allowed users to freely transfer music, texts, and other works of art to other people. This was especially true of the Internet, which made downloading music, text, and movies easier than ever before. Copyright holders felt that many of the laws currently on the books did not provide enough protections for their works.

Alongside the copyright holders’ demands for more protections, foreign governments were demanding more protection for copyright holders in their countries. For instance, the United States demanded that China enforce international copyright laws by finding and prosecuting software pirates and other violators of U.S. copyrights.

As a result of these sentiments, the U.S. signed two treaties that offered more protections for international copyright holders and also addressed technology issues relevant to keeping copyrights safe. These treaties, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), were signed by the United States in December of 1996 and ratified by Congress. These treaties were written with the intention of extending around the world protections for copyright holders in their respective countries. They also motivated the United States to pass laws recognizing copyrights from other countries.

What Does the DMCA Do?

The DMCA makes it a criminal act to produce and disseminate devices, services, or technology that evades measures that control access to copyrighted works. The law also makes the act of circumventing an access control a crime, even if there was no actual copyright infringement, and increases the penalties for any copyright infringement that is done on the Internet.

The DMCA also addresses the role of online service providers in copyright infringement. The law does not hold Internet service providers directly or indirectly liable for any copyright infringement that occurs through the use of their services, provided they adhere to certain guidelines. One action required of online service providers is to block access to or remove infringing material when they receive notice of an infringement claim from a copyright owner. Please keep in mind that the DMCA only addresses copyrights, not other forms of intellectual property, such as patents or trademarks.

Free Consultation with a Utah IP Lawyer

If you are here, you probably have an intellectual property law issue you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Tuesday, 23 October 2018

Things to Include in Your Child Custody Agreement

Things to Include in Your Child Custody Agreement

Every child custody agreement will have its own unique elements. But in general, there are certain items you will absolutely want to include in your own agreement. Here are a few of those most essential elements:

  • Custody descriptors. You need to clearly outline who has both physical and legal custody of the children. Physical custody refers to who is the physical guardian, while legal custody refers to a parent’s ability to make decisions on the child’s behalf. There are different arrangements. Sole custody gives one parent both legal and physical custody, while joint custody gives both parents a shared amount of legal and physical custody.
  • Who makes certain decisions. If you want one parent to be in charge of specific decisions regarding the upbringing of the child, such as medical care, education, religion and extracurricular activities, it should be included in your custody agreement.
  • How you’ll divide costs. Raising a child is expensive. Even when taking child support into account, both parents will likely need to split certain costs. You should have a clear outline of who is in charge for which expenses — or how much of a particular expense. For example, who pays for medication? Who pays for school costs? Which parent claims the child as a dependent on tax returns?
  • When visitation will occur. If one parent has sole physical custody of the child, you should have a thorough, clear visitation schedule implemented in your child custody arrangement so there can be no debate later on about the non-custodial parent’s rights. This plan should address holidays, frequency of visitations and any other issues that could arise between you and your spouse.
  • Future plans. You need to leave some room for flexibility to either amend the agreement down the road or to cover how you will address general issues not currently covered by your agreement.

Complexities of Child Custody Involving Unmarried Parents

When unmarried parents end their relationship, they must go through many of the same motions to establish custody as legally married parents. Nevertheless, there can be certain complexities that apply when establishing custodial rights of unmarried parents.

Importance of establishing paternity

Unlike their married counterparts, when an unmarried couple has a child paternity is not assumed, but must be established. During and after the unmarried couple’s split, the unmarried mother is typically given a primary right to custody, care and control of children resulting from the relationship.

If an unmarried father wishes to have partial or full custody of a child, he must establish paternity through a court order or by having his name listed as the father on the child’s birth certificate. However, if a child was born while the mother was married to someone other than the biological father, the mother’s legal spouse will be listed as the father on the child’s birth certificate. In this case, the biological father may file a paternity petition.

Once paternity is established, the father may be awarded partial custody of the child. If the mother is deemed to be unfit to parent or has abandoned the child, then a father may be able to establish full custody.

Child Support for custodial parents

Unmarried parents who have custody of their child may receive child support. As with married couples, child support is determined based on incomes of both parents and the amount necessary to properly look after a child. An exemption to this standard would be if a non-biological parent adopts the child. When another party adopts a child, the biological parent’s financial responsibilities to that child are terminated.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Small Business Debt Collection

Small Business Debt Collection

If you own a small business, you may know how difficult debt collection can be. Small business debt collection is often one of the main failing points of many businesses throughout the country. With a little practice and courage, however, you may be able to lessen the amount of late payments that are due to you, and even develop an understanding of when to expect non-payment from a customer. If you can learn effective communication skills, you may find that you can spot problems before they become too big, or even before they happen at all.

Types of Late Paying Customers and Clients

In general, small business debt collection has to do with collecting monies owed from customers and clients who fall into three categories:

  • Customers and clients that will go to any length to avoid paying.
  • Customers and clients that tend to have many payments due at once and pay them sporadically.
  • Customers and clients that normally pay on time, but cannot because of financial trouble.

In general, you will want to ensure that your clients and customers fall into the last two categories. You will be able to manage and work with those that fall into the last two categories because they have a history of making full or partial payments. As a small business owner, however, you need to be able to devise a strategy and method for figuring out which clients and customers fall into the first category. In general, you will want act quickly with regards to the first kind of customer, perhaps by calling a collections agency or considering litigation to collect the debt owed.

There is a general rule that should be applied in all small business debt collection — act quickly and stay determined. No matter what kind of client or customer you are dealing with, acting quickly will ensure that you maintain your right to the money owed, and staying determined can ensure that you get paid in full. You should send bills and reminders to debt-owing clients and customers on a regular basis. There is no reason to wait until the end of a month to send an invoice or a past-due notice, send them immediately when the invoice comes in or when an amount is past-due.

Collections agencies are regulated through the Fair Debt Collection Practices Act, which prohibits certain actions that may be considered harassment or fraud. What follows are some more helpful hints for small business debt collection:

  • Avoid harassing the people that owe you money. This is both a good customer service policy as well as a good legal policy. If your actions can be considered harassing, you may wind up losing a customer as well as facing a legal challenge. If you call your debtors, be sure not to leave more than one message per day, and never threaten or speak ill of a debtor.
  • Keep phone calls short. To keep phone calls short, be sure that you are on message, short and formal. Try to be sure that the person on the other end of the line does not take the phone call personally. Do not imply that failing to make a payment is the same as a personal failure. Be sure to stay calm during the conversation, but always be clear that there is a debt that needs to be paid.
  • Write letters. The letters that you write to your customers and clients that owe money are called demand letters. You should be sure to send these in addition to making phone calls. Save copies of each letter you send. They may be useful if you have to go to a collections agency.
  • Get a collection agency to write demand letters. Collection agencies are professionals when it comes to getting money that is past due. Therefore, it is no wonder that they write great demand letters as well. Many collections agencies offer this letter writing service at a fixed cost. You will normally get a series of letters to mail, each one escalating in intensity.
  • Offer to settle for less than is due. If you think that a debtor would be willing to do so, you may want to offer to settle for less than is due to your small business. This is an often used strategy on clients and customers that have no real hope of paying off the debt they owe. This settlement should be made official in a legal document that shows a payment of less than is due that satisfies the entire debt.
  • Hire a collection agency. Collection agencies can often be your only hope to collect any money from a debtor. These agencies often charge up to 50 percent of what they collect, but getting some money is often better than getting nothing. You can find out more about collection agencies by visiting the Commercial Collection Agency Association.
  • Small claims court. If you do not want to go through a collection agency, you have the option of filing a lawsuit to get the money you’re owed. Depending upon your state, you may be able to file a claim in small claims court to recover the money owed to your business. Small claims court is a great arena for small businesses, as these courts are designed to eliminate the high costs of attorneys and other court fees. In fact, small claims courts are such a popular tool for businesses to use to collect debts that, according to at least one source, 60% of all filings in small claims courts are by small businesses.
  • File a lawsuit. If small claims court is not an option for you, and the amount of money is too great to hand over 50% of it to a collection agency, you may have to file a lawsuit in order to recover the debt. There are higher costs associated with this method, however, such as fees for attorneys as well as court costs.

 

Free Consultation with a Utah Small Business Debt Collection Attorney

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Monday, 22 October 2018

Financial Tips for Women Going through Divorce

Financial Tips for Women Going through Divorce

For many people, divorce can be expensive. Between the legal fees and tax implications, the average divorce in the United States costs about $20,000. Furthermore, many people make some key mistakes during the divorce process that can cost them even more in the long term.

The following are some common financial issues women should be aware of as they approach divorce:

  • Don’t wait for child or spousal support money: Many women fail to realize that if they are seeking alimony or child support from their former spouses, they do not have to wait until the divorce is finalized to receive it. They may request a consent order to provide temporary support until a more permanent agreement may be reached.
  • Separate accounts as soon as possible: When a divorce is impending, some individuals may spend money and rack up debt, knowing that his or her former partner will have to share that debt. To avoid this issue, be sure to separate your accounts as soon as you can, and open up new accounts in your name alone.
  • Figure out health care: If you are on your spouse’s health insurance plan, you may have the option of keeping that policy as part of the divorce negotiation process. If that’s not a good option, you need to start thinking about how you will approach health care for both you and your kids, if needed.
  • Make a plan: A divorce can significantly disrupt your financial situation, and there are some short-term costs that can pile up if you’re not careful. Be sure to budget accordingly and borrow money from a family member or friend if you need to cover some expenses during or immediately after your divorce.

Couples More Likely to Get Divorced Upon Returning from Family Trips

According to research from sociologists at the University of Washington, divorce tends to be much more likely after couples get home from family vacations. It’s perhaps one of the primary reasons why divorce rates tend to spike in January and August of each year—those are the times right after the holidays and at the end of kids’ summer vacations, respectively.

There are numerous reasons why this might be the case. Couples may try to hang on to their struggling relationships through a family vacation, sometimes believing that the trip will help them reconnect. Or, they may wish to provide the family with one last positive experience before pursuing divorce. Regardless, problems in a relationship rarely go away with a vacation.

Vacations, holidays can expose underlying issues

According to the University of Washington study, vacations often highlight the tensions and conflicts couples near divorce are experiencing. There is also the factor of people having high expectations as the holidays or a vacation approach, which can make the letdown even greater once the experience is over and the relationship is still in turmoil. Meanwhile, despite the hope and excitement of the holidays, it can also be one of the more stressful times of the year, exacerbating existing conflict in a relationship.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Wrongful Termination Laws

Wrongful Termination Laws

You should always be mindful of wrongful termination laws. Firing someone for the wrong reason could land you in a whole lot of legal hot water.

A majority of employees in the United States are “at will” employees. What this means is that you can fire these employees at any time and for any reason, so long as the reason is not discriminatory, retaliatory or otherwise illegal.

Both state and federal laws are in place that prohibit employers from firing employees for certain reasons. These wrongful termination laws will apply whether the employee is at will or the employee is working under an employment contract.

Wrongful Termination Laws: Discrimination

Under federal law, it is illegal for employers to fire an employee because of the employee’s race, gender, national origin, disability, religion or age (so long as the employee is at least 40 years old). In addition to these “protected classes,” federal law also makes it illegal for employers to fire an employee because she is pregnant or has a medical condition that is related to her pregnancy or childbirth.

A majority of states also have wrongful termination laws that prevent employers from terminating employees for all of the reasons listed under the federal laws. Some states also take their wrongful termination laws further and add more “protected classes.”

For example, some states also include sexual orientation in this list of protected classes. An employer in such a state would be prohibited from terminating an employee just because they were gay or lesbian. In addition, some states write their wrongful termination laws in such a way that they cover a wider ranger of employers than the federal laws do.

Wrongful Termination Laws: Retaliation

Generally speaking, it is illegal for an employer to terminate an employee for asserting his or her rights under federal or state anti-discrimination laws. Employees have been known to build successful retaliation claims even when the underlying discrimination claim doesn’t work out in their favor. As an example, if you fired an employee for complaining that she was not receiving equal pay to the men in similar positions, you may end up losing a retaliation lawsuit even if you end up showing that your pay schedules were not discriminatory based on gender.

Wrongful Termination Laws: Refusing to Take a Lie Detector Test

Under the federal Employee Polygraph Protection Act, employers are not allowed to fire employees on the basis that they refused to take a lie detector test. In addition to this federal law, many states also have laws that prohibit employers from firing employees because they refused a polygraph test.

Wrongful Termination Laws: Aliens

Under the federal Immigration Reform and Control Act, employers are prohibited from firing employees on the basis of their alien status. So long as the employee is legally eligible for employment within the United States, an employer cannot fire that employee solely on the basis of their alien status.

Wrongful Termination Laws: Complaints about OSHA Violations

Under the federal Occupation Safety and Health Act (OSHA), employers are prohibited from terminating employees because they make complaints about the employer’s OSHA violations. These complaints are often made about an employer that does not meet state or federal health and safety standards.

Wrongful Termination Laws: Violations of Public Policy

There are a number of states that have laws that prohibit employers from terminating employees when the terminations are in violation of public policy. In other words, these laws stop employers from firing employees for reasons that the public would find morally reprehensible or ethically wrong. These laws are often difficult for employers to follow, as morals and ethics are subjective and will vary from state to state. It is not uncommon for some state laws to differ form the laws of other states.

However, despite this subjectivity, there are some common themes that are found in many states’ laws. Many states agree that the following would be in violation of public policy:

  • Terminating an employee because he or she refused to commit an illegal act that was ordered of her by a superior (such as refusing to destroy documents that must be maintained according to state or federal law).
  • Terminating an employee because the employee complained about his or her employer’s illegal activities (such as firing an employee that made a complaint to the federal government about his employer’s illegal dumping of toxic materials). These laws are often referred to as “whistleblower statutes.”
  • Terminating an employee because the employee exercised his or her legal right (such as taking a permissible family leave).

Employer Fears about Wrongful Termination Laws

Even the most careful employer that follows all of the guidelines that are set out above can feel uncomfortable about wrongful termination laws. Many employers fear that a former employee will come back with a lawyer in tow and file a wrongful termination lawsuit. One way that you can alleviate these fears is to have all outgoing employees sign a “release” where the employee agrees not to sue the employer in exchange for some benefit (such a severance package).

Free Consultation with a Utah Business and Employer Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Sunday, 21 October 2018

Opening and Closing Accounts During Your Divorce

Opening and Closing Accounts During Your Divorce

One of the most important steps to take before you file for divorce is to create a full inventory of all your personal and joint accounts. This includes accounts with banks, credit unions, credit cards, brokerages and lending institutions. Included with this list should be the following

  • All account numbers
  • Whether the account is listed in your name, your spouse’s name or both
  • The balances in those accounts
  • Phone numbers and addresses for all banks and creditors
  • Automatic withdrawals currently scheduled from accounts
  • The date you opened the account
  • The balance on the account or loan prior to your marriage, if applicable

Putting together this list of accounts can help prevent your spouse from getting away with concealing assets from you once you actually file the divorce paperwork.

It is also a good idea to open a new bank account during your divorce, especially if your spouse has been irresponsible with your marital assets. You should inform your spouse and the court about the new account, but be aware that any income you earn until the divorce is finalized is still considered marital property.

Be very careful about closing out accounts during your divorce. You may close out credit card accounts that do not have a balance, but accounts that are being actively used should remain open. You do not want to give the appearance to the court that you are sabotaging your spouse’s finances. Your best option is to keep track of your balances and your spouse’s spending, and to report any strange withdrawals, charges or purchases to your attorney as soon as possible.

What Can’t You Do with a Prenuptial Agreement?

A prenuptial agreement is an effective tool to help you keep your finances separate, protect yourself from potential debt, keep your property in your family, clarify who is responsible for what during your marriage and planning what happens to your property in the event of a divorce. However, there are limits to what prenuptial agreements can accomplish.

The general rule is that anything illegal or “unconscionable” is off limits with a prenup. Here are some examples:

  • Restricting rights to child support, custody or visitation: Child support is considered a right of every child, which means no court will honor any prenuptial agreement that involves one or both spouses either limiting or forgoing child support. Additionally, visitation and custody sharing are determined by what is in the best interests of the child, and so courts will not allow prenuptial agreements to interfere with those decisions.
  • Encouraging a future divorce: Sometimes, a judge will analyze how a prenuptial agreement specifies the potential split of assets in the event of a divorce and declare the agreement void because it makes divorce lucrative or beneficial for one of the spouses.
  • Making certain types of rules: Although prenups can be used to outline certain financial guidelines for the marriage, they cannot be used to determine responsibility for work around the house, agreements about having or raising children or which last name a spouse will use.

In some cases, courts may strike certain elements of a prenup, but keep the rest of the agreement intact. In others, the court might void the entire document and ask you to create a new version.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Don’t Make These Advertising Mistakes

Don't Make These Advertising Mistakes

Before you air that first advertisement, you’ll want to make sure you’re both in compliance with the law and consistent with your company’s vision. Once you’ve run a print ad, television commercial, or Internet advertisement, you can’t take it back. You can’t predict the future or control for every possible mishap, but you can learn from the mistakes of those who have come before you.

The following advertising mistakes provide valuable lessons for the entrepreneur embarking on an advertising campaign. See the Marketing and Advertising Laws section for additional articles and resources.

FTC Penalities

Sellers of BluBlocker sunglasses were penalized $50,000 by the FTC in the recent past for violating the Mail and Telephone Order Rule which requires companies accepting mail and telephone orders to ship the product within a specified time period, or notify the buyer of their option to either cancel the order (and receive a refund) or consent to the delay. When J S & A Group, Inc., sellers of BluBlockers, failed to ship sunglasses in compliance with the Rule a complaint was made, and the FTC took action.

Lawsuits over Pizza Advertising

In March 1998, the National Advertising Division (NAD) of the Council of Better Business Bureaus determined, in disagreement with challenger Pizza Hut, that Papa John’s International’s use of the trademarked phrase “Better ingredients. Better pizza.” was not a false superiority claim. Papa John’s argued that the phrase did not make a superiority claim but instead communicated the fact that better ingredients will result in a better pizza. Furthermore, Papa John’s argued that even if the trademark contained a competitive message, it had substantiation that its pizza was in fact better because of the use of fresher ingredients.

Although the NAD agreed with Papa John’s, it did ask that the company narrow the context of its advertising to focus upon the specific type of pizza which was tested (thin and traditional crusts, in this case, as opposed to pan pizza). Pizza Hut, unhappy with the determination of the NAD, took the case to the United States District Court for the Northern District of Texas. The trial judge agreed with Pizza Hut that when engaging in comparative advertising, such as through use of the trademark “Better Ingredients. Better Pizza.,” it is unlawful to make false comparisons or engage in misleading advertising. The trial judge ruled that Papa John’s had to immediately stop using the phrase on all pizza boxes and delivery vehicles.

False Advertising Can Lead to Legal Trouble

In May 2000, the NAD announced that it recommended that Kal Kan Foods, Inc. modify its advertising to avoid conveying the message that Whiskas Homestyle Favorites in Flavor-Lock pouches “tastes better” than canned cat food. The accuracy of Kal Kan’s Whiskas advertisements was brought to the attention of the NAD by Friskies Pet Care Division of Nestle USA, Inc., who is a competitor of Kal Kan. Upon review, the NAD, while cognizant of Kal Kan’s reluctance to submit highly confidential documents for examination, found that the evidence which was provided by Kal Kan was not sufficient to support the superior taste message conveyed by its advertising. Kal Kan disagreed with the NAD and has appealed the matter to the National Advertising Review Board.

Hair Regrowth Law Firm

In September 1999, the NAD announced that the advertising claims for Adam Lewenberg, MD’s Formula for Hair Regrowth were not properly substantiated. Advertisements for Dr. Lewenberg’s hair formula stated that the product was “clinically proven” to regrow hair on nearly 90 percent of patients, that it worked within a three-month period, that it was permanent, that it was safe, and that it was “superior” to all other medications whether prescription or over-the-counter.

As support for his claims, Dr. Lewenberg provided the NAD with an article published in Advances in Therapy which was, in essence, an anecdotal reflection of Dr. Lewenberg’s own experience with use of his product on over 1,000 of his patients. Dr. Lewenberg argued that this “study” substantiated the various claims made in his advertisements. The NAD disagreed with Dr. Lewenberg and noted that claims that are based on “scientific evidence” must be supported by adequate and well-controlled clinical studies, not anecdotal reflections. In addition, evidence that provides substantiation for “establishment” claims is generally held to a higher standard than that required for other claims. The NAD determined that Dr. Lewenberg’s study contained serious flaws and that all claims in his advertisements were unsubstantiated.

The NAD disagreed with Dr. Lewenberg and noted that claims that are based on “scientific evidence” must be supported by adequate and well-controlled clinical studies, not anecdotal reflections. In addition, evidence that provides substantiation for “establishment” claims is generally held to a higher standard than that required for other claims. The NAD determined that Dr. Lewenberg’s study contained serious flaws and that all claims in his advertisements were unsubstantiated.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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