by eclewis | Jul 22, 2013 | Business News, Online/Social Media Law
What is the Marketplace Fairness Act?
The Marketplace Fairness Act was passed by the U.S. Senate on May 6th and is currently pending vote in the House of Representatives. The MFA would enable state governments to tax online retailers generating $1 million or more in a fiscal year.
The Marketplace Fairness Act is not a federal sales tax but a uniform framework for state governments to enforce their own sales tax laws on interstate exchanges. If the bill is passed in the House of Representives and enacted by President Obama, who has already indicated support for the legislation, states will have to follow basic rules as outlined by Rick Burgess if they do not join the Streamlined Sales and Use Tax Agreement:
- Notify retailers in advance of any rate changes.
- Designate a single state organization to handle sales tax registrations, filings, and audits.
- Establish a uniform sales tax base.
- Establish a way that a retailer can pay sales tax at a different state’s rate for sellers in that state.
- Provide free software for managing sales tax compliance
- Hold retailers harmless for any errors that result from relying on state-provided systems and data
The bill has rallied supporters and opponents alike. Among the supporters are state and local governments who can expect increased tax revenue as well as The National Retail Federation -the worlds largest retail trade association. The NRF has urged Congress to pass and implement the MFA. In a letter distributed to members of the Senate, NRF Senior Vice-President, David French states:
“As the retail industry evolves and digital commerce becomes a more prominent portion of total retail sales, it is critical that the tax laws not discriminate between businesses based on how their products are distributed…The Marketplace Fairness Act addresses the crisis by removing the constitutional limitations on states’ authority to collect sales tax from out-of-state sellers.”
Ardent opponent of the MFA Terri Alpert, a well-respected CEO in Connecticut who has built two top-shelf brands that generate more than $14 million in sales every year sat down with Forbes magazine to discuss why she is against the bill. The most vocal proponents claim that the MFA is an attempt to level the playing field between brick-and-mortar stores and online retailers but in reality it is: “a way to consolidate sales and power in the hands of the biggest retailers and to crush the little guys with an administrative burden that no small or even medium-size company can handle” according to Alpert.
In regards to the $1 million dollar revenue cutoff exemption Alpert adds that “for most people, that sounds like a pretty large business. But retailers work on very small net margins, often 5% or lower. So the typical $1 million seller may have one part-time employee and may be earning about $50,000 a year!”
The Marketplace Fairness Act may have more difficulty passing through the Republican majority of Congress than it encountered in the Senate. For now, only time will tell how the Marketplace Fairness Act will play out. In the event that you have any questions about the pending legislation or any legal business matters, contact your Denver business attorney Elizabeth Lewis at 720-258-6647 .
by eclewis | Jul 9, 2012 | Business News, IP Law, Online/Social Media Law
Identifying Internet Scams
Today was a great day – rain was falling in our state which had been dry for weeks. It was the beginning of a great week. We had just celebrated the Fourth of July and I had been on a slight vacation – partially by chance and partially due to health. I was glad to be back to a full work week.
However, my first week back to work was quickly brought down by a phone call. This person alerted me that someone was using my information to sell items through kijiji.com. This person is stating that she is an attorney located in Denver Colorado and must sell items through kijiji (the Canadian version of our Craiglist’s) such as instruments and machinery. The person is saying that the buyer should go through a site called sell2pal and submit all the money in advance and then the items will be shipped to them.
I have never sold on the kijiji website. I have also never sold to anyone in Canada. Needless to say, this made me realize how easy it is to become a victim of identify theft. So, in addition to saying if you are buying large items though kijiji I recommend you don’t if it is through someone saying they are an attorney in Denver named Elizabeth Lewis, I recommend in any case you do the following:
- Never send money up front – especially large sums of money.
- Make sure you know who you are dealing with. If you are going to be making a large purchase, the person should have a name, number, address, and other information that is verifiable.
- If you are making a large purchase and must put money down, have an agreement to go through any escrow agent to hold the funds before delivery of the item.
- Lastly, if a deal seems to good to be true, it probably is.
And, finally, if you get contacted by someone saying they are lizzyhome at gmail.com, run the other way. I’ve never gone by Lizzy and am not selling items in Canada. Use some common sense. Do some research. Call the supposed person you are buying from. And, no, I am not selling anything at this time – especially not to anyone in Canada!
by eclewis | Sep 28, 2011 | Business News, IP Law, Online/Social Media Law
As an attorney that frequently speaks on social media, online law, and other techy legal issues, I get asked by employers what they can and can’t do as far as investigating applicants online. Unfortunately, the answer really varies on the specific circumstances. However, in most cases, employers should follow at least the following basic rules:
- Don’t do anything online that you can’t do offline. For instance, do not use information you find online to discriminate against a potential new hire. If you cannot discriminate against someone due to having children offline, you can’t research whether they have children online.
- You may be required to tell individuals where you get information about them during the interview process. If you are going to hire a company to research online sources to find out more about applicants, check with your attorney to determine if you must reveal this under the Fair Credit Reporting Act.
- After hire, make sure you clearly state what you expect from employees both on and off the job regarding the use of social media. For instance, do you need to worry about complying with the FTC endorsement rules (i.e. if your employee says good things about you do the disclose the employment status)?
Depending on the number of employees you have and the type of business you have, you may need to have a policy on both using social media in the hiring process and after hire. If you are hiring employees, or have employees and haven’t thought about whether you need a policy before this, contact me, your Denver Small Business Lawyer today to find out if you need one today.
by eclewis | Aug 10, 2011 | Business News, IP Law, Online/Social Media Law
Privacy Policies and Your Business Website
Last week, I talked a little about terms of use and why your website needs one. The TOU is only one of several documents that most website needs – websites typically also need privacy policies and copyright policies. Today you get to learn a little about what privacy policies are and when websites need them.
What is a privacy policy?
A privacy policy explains what you as the website owner do with the information you gain about website users. For instance, you may gain information about people through web-logging software such as Google Analytics. You may ask users to submit their names, birth dates, or email addresses to your site. You may request credit card payments from users or mailing addresses. All of this information collected will be used for various things. You may use someone’s name for both the username on the account and to mail them direct mail. You may collect analytic information to sell to marketers. A good privacy policy will go over what you collect, how you use it, how others use it, and where it will end up.
Does every website need one?
Most websites need privacy policies. Almost all websites collect some type of information. If you believe you do not need a privacy policy, it is always best to run this by an attorney to make sure it is true. Many privacy policies are fairly boiler plate; however, it is important to ask your attorney if there are any issues that aren’t addressed in your particular situation that should be as boiler plate text only works to a certain extent.
If you have a website and are wondering if your privacy policy is sufficient or if you need one written, contact your Denver business contract attorney today at 720-258-6647.
by eclewis | Aug 4, 2011 | Business News, IP Law, Online/Social Media Law
Last week, your Denver business attorney was lucky enough to get out of dodge and headed up to the gorgeous town of Breckenridge, CO to speak at the Colorado Women’s Small Business Development Conference. While I got out of the heat of Denver, I spoke about a topic that can get a business into a lot of hot water: online marketing. When setting up a business website, business owners worry about issues such as search engine rankings, visibility, and usability. However, many times they forget to think about whether the website is opening them up to liability issues. In today’s blog, I am going to briefly speak about what a terms of use is. Stay tuned next week to learn about privacy policies and the week after to hear a few things about copyright policies!
Terms of Use Policies
A terms of use, sometimes also referred to as a terms of service, is the agreement a user of a website enters into with the website owner. Typically, a terms of use states what the rights and obligations are of both the users of the site, the owners of the site, and browsers of the site. It ensures that everyone knows what they can and can’t do. For some sites the terms of use is fairly short. For instance, a site which is for a small audience and doesn’t allow comments is going to have a much smaller terms of use than a e-commerce social media site where people interact and buy and sell things.
What You Need To Include
A good terms of use will cover the issues that a site owner may encounter with a website user that would result in legal issues. Ninety-nine percent of terms of uses will include a basic description of what the site is going to be used for, whose law controls any disputes (i.e. Colorado or Vermont or Utah), where disputes are heard (i.e. Denver district court, Clay County, Florida, etc), whether the rights of a user can be transferred, and basic contract language (for more on this, attend one of my Contract Basic classes). In addition, depending on the site, terms of use may include clauses that are e-commerce specific (sales, shipping, and return policies); social media specific (account, user interactions, and uploading policies); or profession specific (attorney disclaimers, real estate disclaimers, etc).
Why You Need One
If your business is online, you need a terms of use. It may be something as simple as a few paragraphs if your website is only an online business card or it may become several different documents if you end up running a website as large as Google, Facebook, or MSN. If you don’t have one, especially if you are providing products or services through your website, you may find that you are fighting court battles in places you never expected (and didn’t particularly want to go) when a transaction goes wrong.
If you find yourself in need of a terms of use because you are starting an e-commerce site or have never had a website for your business, please call me, your online business law attorney at 720-258-6647.
by eclewis | Jun 30, 2011 | Business News, IP Law, Online/Social Media Law
Copyright Infringement – Then and Now, Part 2
Monday we talked about how copyright infringement is more public now than twenty years ago. It is also my opinion that part of the issues is that those who have grown up with the Internet don’t see copyright infringement as that big of a deal. Napster, eDonkey, Gnutella, and other sites were the first in a wave of being able to share copyrighted music and movies with not only those that lived in your neighborhood, but those who lived in another country. Youngsters (and even older folks) would just download songs from these sites without thinking twice about the fact they were committing copyright infringement. A whole generation has grown up where “borrowing” and “sharing” are the new terms for copyright infringement.
In addition to being able to easily commit copyright infringement, I think more people (especially those that are younger) don’t see music, videos, or other things as something that can be “owned”. When I was a kid, you had to buy content. When a band came out with a new album, you had to purchase the album to all of the songs on it. Only a few were played over the radio. To watch the videos, you had to have cable to get MTV (back when it played music videos that is). To get a book, you had to buy the book or borrow it from a friend who had bought it (many times fair use, which is another discussion) – to copy it on a printer was not worth the time and money that it took, in most cases you could buy the book cheaper than copying it.
However, with the advent of the internet, that all changed. All of sudden, you did not have to pay a cable bill to see the newest music video – you just went online. You did not have to make a mixed tape in your basement – you did it with a few clicks of a mouse. As a business owner, if I “borrow” something a business owner has written in a far away state, it no longer goes to 1,000 people in my metro area which the likelihood of that business owner knowing I even borrowed means they has to know one of those thousand of people here, but is put on my blog which may have a readership in every major city in the U.S., not to mention available by Google search.
Many people think that because it is online that it has been shared with the world and that the rights of the author have been given up. Of course, as we business attorneys know, that isn’t the case. People keep rights to works even if they distribute them online. They don’t give up rights just because they have published something online. However, as more people grow up online it may be that the laws will need to catch up to the change in society.
If you have questions about whether a work you have found online can be used on your site, contact your Denver small business attorney, Elizabeth Lewis today at 720-258-6647 or Elizabeth.Lewis at eclewis.com.
