Intellectual Property Law

Website Succession Planning Is Succession Planning for Websites, Internet Properties, Digital Assets

Posted on February 10, 2012

The process of following in order
When you think about succession planning, and website succession planning in particular, it's important to keep in mind that succession is the act or process of following in order, or sequence.

At the heart of website succession planning is consideration of the intrinsic value of your internet properties measured by tangible and intangible factors that are independent of the internet properties' value to anyone or anything else.

A unique purpose
Every website serves a unique purpose to each owner, whether an individual, family, corporation, government agency, school, organization, association or charity; and its public and customers.

Expectations are great and every website and internet property takes on a life of its own. Each is touched by many hands to create, build and maintain a vibrancy of content and presentation. Some are "set 'em and forget 'em" sites while others require care and attention around the clock.

Owner vulnerability
With so many hands touching each phase of development and maintenance, owner vulnerability has increased. Without realizing it, owners relying on others to create, build and maintain their websites and internet properties have in essence handed over the keys to their business and livelihood to them.

We are way beyond having a few email accounts and passwords. Our lives, and businesses, have moved online with lightening speed. A digital device is always at the ready and within a fingertip's reach of generating opportunities and risk.

Knowing key access points
Best practices dictate every owner of internet properties have all key access points and the fundamental pieces of information necessary to take control of their domains, websites and internet properties - if they need to. At the minimum, some key access point information includes user names, passwords, emails associated with accounts, and an access URL, and who is authorized to access the account.

All facets of digital assets and intellectual property need to be accounted for in the event of losing essential personnel, service providers or even the death of the owner. Without this information at the ready, online businesses and internet properties will begin to fray around the edges and the necessary results a business relies on will eventually disappear.

In control of information
Our families, customers and public expect us to be accountable and in control of this information. Gone are the days when we can shrug our shoulders and assume someone will figure all this out when we're gone. Now is the time to begin gathering fundamental key access points and assembling them in a safe and secure way so you're always in the position of being able to hand them to a successor, family member or attorney to attach to your will, trust or estate plan. Someone, besides you, has to know where you keep the information, and how to access it.

Income-producing internet businesses and internet property estate planning
When you use estate planning laws for website succession planning for income-producing internet businesses, you could also think of it as the order in which, or conditions under which one person after another succeeds to your internet properties and digital assets. When you create a website succession plan, you can create a legal entity that provides the structure of one person taking the place of another in the enjoyment of or liability for rights or duties or both. In essence, when you create a website succession plan your goal is to preserve the continued operation of your internet business, the digital assets, its access points, and the income it generates for future generations providing for their financial benefit and life-long security.

The internet has made it possible for many to realize dreams of owning a high-income producing business. These internet businesses have helped many live a lifestyle of their dreams and enjoy the benefits of passive, perpetual and residual income as a result. The internet has also created a new set of legal challenges in terms of passing on websites, internet properties and a family-owned internet business to future generations.

The Website LLC
In the past, families relied on a business succession plan, estate plan or a trust or even a simple will to pass the family business to their family. There are inherent risks with passing an internet business to someone without process flow knowledge and without knowing the key access points to guarantee a lifetime of uninterrupted operation and cash flow. In many instances an internet business will cease operations with the death of the owner and ultimately income will be lost without the knowledge of process and knowing the key access points. One option to consider is developing a website succession plan utilizing a Website LLC with a Website Operating Agreement to move the family internet business to the safety of being governed by entity laws.

Developing a Website Operating Agreement
A Website LLC has at its core the Website Operating Agreement so you can control when and how the family internet business is passed to future generations. When you use a website succession plan in this manner you are in control of another aspect of succession planning which is the act or process of a person's becoming beneficially entitled to internet properties, digital assets and intellectual properties or the internet property interest of a deceased person.

Legal Documents and Website Succession Planning
It's easy to begin the process of developing a website succession plan. First, gather all key access points for each facet of your internet properties. Organize and record this information in a safe, secure and offline manner using either printed documents or software made specifically for recording information about internet properties and internet businesses. Meet with your attorney and attach this information, or how to access this information to your legal estate planning documents.

Trademark Versus Copyright: Which Applies to Your Content?

Posted on January 27, 2012

In my work, I encounter this particular confusion quite regularly - clients (and adverse parties) seem to think that copyright applies to both a website and its domain name. But this belief is incorrect. Here's a simple, easy way to remember it:

Copyrights are for Content. Trademarks are for goods/services.

So, a client can claim a copyright in the content written on a blog, a website, etc. However, you can't claim a "copyright" in the domain name that hosts your website: it's not really content. It could be, however, a name linked to your goods or to a service that you provide. If so, you can claim trademark rights in that name.

[Note that these rights usually apply whether you register with the Federal government or not! But registration certainly helps your arguments later on, if it comes to that...]

For further information, the US Copyright Office website has a document that explains in greater detail what kind of things can get copyright protections, including literary, musical, and dramatic works. And, likewise, the US Patent and Trademark Office (usually abbreviated USPTO, or just PTO) has a document that explains trademarks in greater detail - it describes them as "a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods [or services] of one party from those of others...." Each US state may also offer trademark or copyright registrations, typically at a lower filing cost, although the usefulness of local registrations may not be great as federal registrations.

Click Wrap Agreements – What Are They and Are They Enforceable?

Posted on August 22, 2011

When purchasing a product online or downloading a program or piece of software from a website, who has ever read the numerous pages of terms and conditions written in a print barely legible that pops up on the screen in a little box? Is the content ignored and simply accepted because most people cannot be bothered reading pages and pages of cryptic legal terms and phrases, let alone decipher what's in the box, or do people doubt the legality of such "contracts"? What exactly are such agreements and are they even enforceable?

What are they?

Originating from the equivalent 'shrink wrap contracts', often used in boxed software purchases whereby the act of tearing open the plastic wrap amounts to an acceptance of the terms enclosed within, click-wrap agreements are a similar form of terms and conditions in relation to transactions conducted on a website over the internet. Rather than tearing open the shrink-wrap, the enforceability of click-wraps are through the simple act of clicking the "accept" button, without any need for a signature and without an opportunity to change or amend the conditions.

Commonly used in connection with software licences, the purpose of such agreements is aimed at alerting the user that the software is protected by copyright and other Intellectual Property Laws and Treaties. Although copyrighted work is already covered under copyright law, there exist areas that are nevertheless, unprotected. Thus, click and shrink-wrap agreements can be used to fill in the blanks through the following ways:

  • to disclaim implied warranties, remedies and liabilities;
  • to specify the governing law and forum;
  • to protect non-copyrighted material;
  • and to impose other limitations.

Are they enforceable?

Whether such forms of agreements are enforceable has raised much controversy worldwide. Their legal status is still somewhat unclear, the issue of their validity has received more attention in the United States than here in Australia, however, the common thread of consensus favours click-wrap over shrink-wrap agreements.

The reasons for this relate to the method of acceptance. As stated, the acceptance of shrink-wrap agreements is by ripping the plastic wrapping used to wrap software boxes in order to get to the Terms and Condition enclosed within. The user, however, without having the opportunity to first read the terms, has already 'accepted'. Click-wrap agreements on the other hand, are more likely to be accepted and enforceable as the user can first review the conditions prior to clicking 'accept'.

Several US cases have indicated that shrink-wrap agreements are unenforceable and point towards their enforceable counterparts, click-wrap agreements. There is yet to be a case in Australia that has dealt with this particular matter. It is, however arguable that if this issue appears before an Australian court, the reasoning of the US decisions will be heavily drawn upon, certainly having an impact on the court's reasoning process.