Law Office of Richard Kuslan LLC

Musicians are, in my experience, too infrequently aware of the business issues often encountered in the industry.  Negotiation is usually not a musician's strongpoint, nor should one expect it to be.  However, it is essential that the musician learn to read, question and understand the terms of any agreement well before he signs it.  Not doing so may -- likely will -- subject him to obligations beyond his ability to fulfill.  In what way?

As an example, TechDirt links to a video from Attorney Martin Frascogna, which musicians ought to watch.  Especially of concern to the musician who has never signed with a label, but who thinks it means the big time, must understand that an advance is just that: a sum advanced to the band which must at some point be repaid -- by the band.  If sales are sufficient to recoup the label's investment (including the advance), great.  But if not...the band is on the hook.  

On the other hand, some terms in a recording agreement mean...well, absolutely nothing on the surface, but you will still end up paying..  Make sure to watch the video.

Without even a glance at the Deep Web, people search the internet (sometimes known as the "Surface Web") for their own names and find, to their surprise, the following freely available to anyone:

• Home phone numbers and residence addresses going back many years, often decades;
• Old resumes on job sites;
• Images others have posted and tagged with their names;
• Legal documents made public record in court filings;
• Defamatory comments.

(Try searching for yourself at Zabasearch, Inteliius or Skipease.)

The business executives I know are rightly concerned about reputation -- both theirs and their company's -- but it surprises me how few make a regular review of the net for references to themselves and their goods or services.  Daily or weekly review would constitute an obsession, but for most situations, a quarterly review is sufficient.

When any of the above are discovered - and something will display that disgruntles you at some point -- what can a person do?   In some cases, a strong letter or email from an attorney is sufficient to bring about the desired result, such as removal of the offending post.  But what if the defamatory comment is made anonymously?  

Depending upon the website, the fact of poster anonymity may not be determinative of outcome.   As an example, I represented a business executive about whom libelous comments were made online.  The magnitude of the problem was serious: the negative comments appeared on a website frequented by thousands of potential customers.  My letter, citing relevant legal authority and site policies themselves, resulted in the removal of the comments within 24 hours of the site's receipt of my communication.  The executive was very pleased with these results.   

A cached version of a web page -- as with all webpages -- is normally discoverable through Google for a period of several weeks thereafter.  For situations in which urgent removal is required, Google provides a removal tool, which the site owner can access in Webmaster Tools.  Webmasters will not perform this action without a demand made upon them because they think it sufficient for the content to naturally drop out once the site deletes the content.

I confirmed the identity of the poster, using a variety of web search techniques.  Contact with the poster himself may also be part of the strategy by which the injury can be addressed.

TO BE CONTINUED

[This Part 3 is the final installment, continued from April 25, 2011 below.]

EMAIL PROPERTIES

The review of e-mail properties aims to decipher the province of the e-mail and whether that product agrees with the e-mail contents. As an example, an email may purport to originate from a company in Shanghai, but upon examination the e-mail itself likely originated from a server in, say, Singapore.  For those with a basic knowledge of world geography, this should not make sense. Perhaps you should look at an atlas once in a while.

Does the sender claim to be an executive of a large corporation, but have an unpersuasive personal e-mail like smilingbob (at) yahoo.com?  Delete.

Does e-mail content or e-mail address (e.g. chuang (at) cashwithasmile.com) lead to a good looking website?  Anyone can build a website.  At this point several simple tasks can be performed, taking less than five minutes of your time:

1)      Input the website address into Google maps and see what comes up.  I once discovered the London address of a false company to house a falafel restaurant.

2)      Check the website whois information, i.e. to whom the website was registered and compare it to the information on the e-mail. If inconsistent, delete. If the whois info is private, delete. Check whois information here. 

3)      Those wishing to pursue further research – are there any by now -- must look to third-party references, such as business directories.

For more detailed analysis, you will need to learn about Internet Headers.  You may discover that the email “from Seoul” actually originates from a curious provenance, such as the island of Malta.  This page on Stopspam should be required reading for anyone who uses e-mail.

YOUR OWN MOTIVATIONS

Your response to a scam email is a declaration that you are a mark; that your e-mail is valid; and that you are vulnerable or dumb enough to be a potential target.

Who doesn't feel the pressure of business?  You, just like everybody else, need and want the business. It’s only natural.  But for your own sake, you must begin with the premise that e-mail from persons unknown offering profitable deals from overseas is guilty until proven innocent.  And they are rarely, oh so rarely, so.

The theft of a laptop presents more than a simple loss of an asset, especially when it holds confidential or valuable data, or work in progress.  Without regular backups, companies put themselves at risk.  

In a survey of more than 125 small businesses with 20 or fewer employees, Carbonite found that companies approach backups in a piecemeal fashion with a variety of physical devices, including thumb drives and CDs.  And it is usually the business owner, generally the one who has the least time available, who performs the back ups.  Continuous online storage, now available with adequate security and privacy for most applications, is a preventative measure that can pay for itself when something happens.  So, will it happen?

There are any number of causes of a computer outage, including, for example, human error, computer failure, software corruption and theft.  The Graziado Business Review reports that:

One study reports that a company that experiences a computer outage lasting for more than 10 days will never fully recover financially and that 50 percent of companies suffering such a predicament will be out of business within 5 years

David Smith, the survey's author, estimated the cost of each computer outage at approximately $4,000.  

But most surprising is the author's report of some 403,000 episodes of laptop theft, if only because so few companies make use of laptop theft prevention mechanisms, such as LoJack for Laptops or Prey.  This post on TechDirt leads to the marvelous story, told in Tweets, of the loss of his laptop to a thief, the method by which he tracked it down and the social media by which he retrieved it.  It alone should be enough to convince any business owner, usually a positive and optimistic person,  to spend a little time and money planning for the events that might negatively affect electronic assets and then proactively provide the necessary protection.

The Tolkien Trust, holding valuable rights in the famed Hobbit and Lord of the Rings properties penned by its namesake, JRR Tolkien, is, I think, known to aggresively protect its intellectual property.   And with good reason -- its IP is valuable.  

In 2009, the Trust, together with Harper Collins, sued New Line and successfully negotiated a settlement over profit participation in the Lord of the Rings movies.  The original claim was substantial:

The Tolkien Trust and HarperCollins filed the suit in February 2008, alleging New Line had failed to pay at least $220 million to members of the trust. The plaintiffs had asserted that under a 1969 contract, the trust and other plaintiffs were entitled to 7.5% of gross receipts from the three films -- which grossed a combined $3 billion worldwide -- and related products, minus certain costs. 

One of the more interesting blogs to come across the desk in recent memory is The Frodo Franchise (sub-captioned: The Lord of the Rings and Modern Hollywood).  Ms. Thompson (who is not an attorney, but a writer and scholar of film) posted details of the suit here.

More recently, the Trust and Stephen Hillard sparred in federal court in the Western District of Texas.  Mr. Hillard is the author of Mirkwood: A Novel About JRR Tolkien, described as both fiction and "critical analysis" of Tolkien's works, curiously employing Tolkien as a character.  

Apparently, in response to a cease and desist letter from the Trust (a copy of which I've not found online) demanding the destruction of books already published, Mr. Hillard went on the offensive, seeking a declaratory judgment from the court under state and federal claims.  The lawsuit, which may be found here, settled as well, with a relatively rapid positive result three months after filing, apparently for both sides.    No mention is made of the terms of settlement, but the suit will be dismissed and the work itself will be published

:...the book will now be released with a modified reference to Tolkien on the cover and will also include the disclaimer, "This is a work of fiction which is neither endorsed nor connected with The JRR Tolkien Estate or its publisher." 
 
Of course, whether or not legal action is justified depends upon the facts of the case, the law implicated and their willingness to move forward aggressively.  However, these cases demonstrate that offensive and defensive action, including litigation, can lead to positive results.  

These survey results sums up the case of Tech Startups very nicely in pictures:

1. Most tech startups employ one or two people and subsist on their own savings.
   
2. They spend virtually nothing.
   
3. Half die in the first six months.
4. Two-thirds aren't focused on selling their product (yet).
5. Most think they'll break even in under a year but the vast majority do not.
   
6. Only 20% have problems with sales and marketing.  Most find the snags occur in product development.
   

This leads one to the unstartling conclusion that tech startups -- needing a product to sell -- focus their few hands on product development.  Without a revenue stream, even minor expenses, over a short time, will prove detrimental to the enterprise.  The longer view is vital, but often only gained through difficult experience.  

Details of the survey may be found here at FounderSpeak.

[Part 1 was posted on 4/20/11, below]

CONTENT

The review of content attempts to ascertain the validity of the e-mail content itself. It shouldn't take more than five minutes. The writer is purported to be an executive of a foreign company owed a substantial debt or, in a twist, and ex-spouse with outstanding custody payments. Generally, some kind of deal is offered that is profitable to the lawyer. Is this already sounding strange to you?

Does the e-mail spend paragraphs describing the company, its business and the legal issue involved?  If so, your delete finger should begin to itch. In fact, this is the setup, designed to create a sense of trust in the reader. Warning bells should ring when a stranger tells another confidential information over an unsecure method of communication. 

Is the legal issue proposed the collection of a debt? Virtually all scam e-mails I have read propose collection matters.  In one common scam, the purported debtor -- in existence only for the scam and quite likely the “client” himself -- pays up with a forged bank.  After attorney wires client the proceeds, the bank check comes back, unpaid, to haunt the attorney, who is now on the hook for the sum he wired plus bank fees for bounced check.  Client and Debtor vanish into the night. Instead of agreeing to take a percentage, try proposing to this client an hourly basis with a hefty upfront retainer wired in cash.  Better yet, don’t. You won't hear back.

Does the writer compliment you?  Here is an actual example: “After a careful research, we have been able to establish that delinquents or past due accounts are settled when reputable and aggressive firm or professional(s) represents an organization in collection of debts or possible litigation that may arise thereof.”  …which is why we’ve chosen you!  Your vanity meter should read off the scale.   A compliment from a stranger may be genuine, but may also lay the groundwork for very subtle scheming.  Redouble your suspicions!

Is there extensive use of four and five syllable words, such as actualization, implementation, delinquency, and sentences that run on for 50 words or more? This is an attempt to appeal to those who inhabit the jungle of legal jargon. Business executives hardly write at all and when they do, they do so in bullet points of no more than 10 words of two syllables each. Your delete finger should now be hovering over the delete button.

If the writer offers a substantial retainer, one can virtually disregard the rest of the e-mail immediately.  Generally, clients do not wish to pay all.  The delete finger should feel heavy now…

Are you addressed by name? If you are addressed only by "Counsel," or not at all, the e-mail is intended for a mass audience.  Hit the delete button.

Does the e-mail purport to come from China?  China is hot and ripe for scamploitation. Chinese rarely, if ever, reach out to people personally unknown, untouched and unseen for representation.   Delete.

Is the claim made that the writer came across the attorney's name in a directory in which the attorney isn't listed or doesn’t exist?   Delete.

Does the writer claim to have contacted the attorney once before, when there hasn't been prior contact?  Delete.

In a lengthy e-mail, are there significant errors of grammar and/or spelling?   Delete.

[Continued on May 18, 2011 above.]

Americans tend to be optimistic, even in tough times, but even so 2011 appears to be the year in which technology companies will really move ahead.  Expense reductions have pared the books of the survivors and, as quoted here, Kevin Sellers, Intel’s vice president of investor relations, says: “Now, things are looking better and they’re spending.” 

Those who have or can find their niche and price their products reasonably may find they are now getting calls back from corporate Purchasing Departments.  From my discussions, it's my general sense that the money is out there, but people are still hanging on to their cash out of a lingering concern.  The thaw in tech may be gradual, but it is proceeding to warm up.

Indeed, tech IPOs, once frozen territory, has warmed up over the past few months, as we see here.  Many of these are Chinese firms, the IPOs of which I've discussed at AsiaBizBlog, here (regarding reverse mergers, a phenomenon we see less of nowadays) and here (in the Chinese context).

Although unemployment remains high and private sector wages have stagnated, this general trend among the larger tech makers and developers bodes well for the smaller firms, some of whom I represent, and it may be expected that 2011 will likely see their business pick up.

This article was originally published in the Connecticut Law Tribune.

Much has been written about e-mail scams preying upon attorneys; frankly, attorneys are quite capable of protecting themselves by virtue of their professional skills.  We are, after all, analysts of prose, distinguishers of detail.  Alas, few of us consider ourselves technologically capable, but this is a distraction and an excuse. Attorneys who routinely scrutinize documents somehow find themselves at the mercy of online crooks who often do a shamefully bad job of covering their tracks. I believe that attorneys can and should be immediately proactive and decisive with 99.9% of all scam e-mails they receive.  Do your analysis and then, in most -- should I say “all?” -- cases, press “delete.”

But what is the analysis?  Having reviewed many dozen specimens, some of which have been e-mail directly to me, others passed on to me by colleagues.  The analysis is far simpler than one thinks, rarely requiring knowledge of technology. However, even the technology is easier to learn than the Rule against Perpetuities. The recommended analysis follows: 

1)      Review the content of the e-mail for suspect indicia;
2)      Check the e-mail properties for clues as to origin; and,
3)      Honestly look at your own motivation for wishing to believe in the purported validity of the e-mail received.

The third prong of this test the most difficult to apply, but crucial to self protection.

CONTENT

The review of content attempts to ascertain the validity of the e-mail content itself. It shouldn't take more than five minutes. The writer is purported to be an executive of a foreign company owed a substantial debt or, in a twist, and ex-spouse with outstanding custody payments. Generally, some kind of deal is offered that is profitable to the lawyer. Is this already sounding strange to you?

Does the e-mail spend paragraphs describing the company, its business and the legal issue involved?  If so, your delete finger should begin to itch. In fact, this is the setup, designed to create a sense of trust in the reader. Warning bells should ring when a stranger tells another confidential information over an unsecure method of communication.   

...continued on 4/25/11.