Practical business law for start-up entrepreneurs

I’m frequently approached by entrepreneurs with exciting business ideas, but some hurdles up front.

In a flourishing small business sector, especially in information-based businesses, knowledge of certain business law concepts will help you use your lawyer as a valuable adviser rather than a necessary expense.

The structure of a business

Most businesses come in three flavours, each with advantages and disadvantages. More than 90% of the businesses with which I work are either sole proprietorships, general partnerships, or corporations. There are some more exotic variations, but most fit in the main three structures. Continue reading

Replacing Fixation: How the information age is forcing us to fix what has always been wrong with copyright

I’ve been discussing the “idea-expression dichotomy” of copyright law with my colleague, Jon Festinger, QC, en route to an article I’m writing on the intersection of intellectual property and protection of privacy. In particular, I’m looking to develop approaches to intellectual property law in the maelstrom of current and impending changes to the ways we create and exchange creative works. Two notions have come up:

One: Jon said the idea-expression dichotomy is not wrong. I agree in part. Copyright protection is attracted by the fixation of expression, and not by the notional birth of idea. It is not until the idea is expressed that we ponder intellectual property protection, and it is the expression of the idea that is protected ¬– not the idea itself. The dichotomy is a comparison of two components of creative work; it is a statement of which component is protected (expression) and which component is not (idea). I don’t see it truly as a dichotomy, however, which is why I only agree in part. More on this soon.

Two: When going over some of what follows here, Jon and I agreed that the problem is in fixation. In the sense of it being the endpoint of the creative process, fixation is an obsolete concept. In an emergent era in which the cyclic nature of creativity is more apparent than ever, the moment of fixation becomes a locus on a communication continuum rather than the endpoint of a work.

Fixation is vanishing because of technological change, despite attempts to locate it and guard it through licensing and statutes that are increasingly grasping at the ungrabbable. The loss of fixation becomes the problem going forward, because we lose our moment of protection; however, fixation has never really been the right moment. If fixation is the problematic moment of protection, and we are losing it, what replaces it?

By re-examining the idea-expression dichotomy to find what we are want to protect, we can perhaps discover that that protectable thing doesn’t require fixation, but an explicit demand for protection.

First, let’s go back to the “idea-expression dichotomy”. The separation of idea and expression is not wrong:

Ideas are not protected, but expression is. Why? Continue reading

Making your Will Clear and Certain

Judges often talk about “certainty” in legal documents.  Certainty is the product of clear language and well-planned logic.  Nowhere is certainty more important than in your Last Will and Testament.  Why?

Your will has to be interpreted by your executors and trustees, their lawyer, your beneficiaries, the court registry, and possibly even a judge.  You won’t be there to answer the questions, “What did you mean by this?” or “What do you want to happen in this situation?”

Clarity x Logic = Certainty

If certainty is the opposite of ambiguity, how do clarity and logic defeat ambiguity? Continue reading

IP Law Firm uses case summary to toot its own horn

Every week, I look forward to informative and useful summaries in the Canadian Corporate Counsel Association’s Newsstand e-mail. Generally, a firm writes an article on an important case or development, explaining the decision and its presumed impact on practice and on business, or they write a guidance bulletin offering tips within a practice area.

Today, I was dismayed by one of the articles. I’m surprised that CCCA would publish such an article, and I consider it inappropriate for the Newsstand.

Smart & Biggar wrote an article, “Smart & Biggar Prevails In Another Precedent Setting Anti-Counterfeiting Decision,” on Adobe Systems Incorporated, Microsoft Corporation, and Rosetta Stone Ltd. v. Dale Thompson dba Appletree Solutions.

The following issues make the article grossly inappropriate for a professional corporate counsel newsletter: Continue reading

Apple v. Samsung and Google, or the Silo and the Bazaar

For those who’ve managed to go off the grid for the end of the summer, Apple sued Samsung in a loosely-veiled attempt to throw a few punches at Google, and Apple won.  There are several ways of looking at this decision, and I’ve had the pleasure of discussing it with a great variety of people to gain insight from a variety of perspectives.

“To Apple, Android is both anathema and undeniably derivative…  Is Apple trying to prevent a Samsung hegemony in the Android bazaar?”

I find myself asking why Apple went after Samsung, instead of after Google directly.  Samsung is no less formidable a foe, whose legal resources – if they are fewer than Google’s – are not significantly fewer than Google’s.   So why Google at all, and why Samsung instead of Google?

According to Walter Isaacson’s biography of Steve Jobs, the late iconic former head of Apple, Jobs considered his battle with Google to be a moral one, and was indifferent to the financial component.  When pressed, of course, Apple set a number on the lawsuit, and was awarded approximately $1,000,000,000 from Samsung by a jury.  A billion.  Apple had sought nearly triple that.  According to Isaacson, Jobs had said five billion wasn’t enough; he wanted to destroy Google, or at least destroy Android and punish Google for having created it. Continue reading