Registration solicitations for trademarks, patents and domains

Dear Client or Prospective Client,

   This is a reminder to be aware of registration solicitations for trademarks, patents and domains.

   You may already know of, and have received, solicitations and warnings to register or publish your trademark, patent or application, or Internet domain(s) with what appear to be government or other official looking entities. The solicitation may sometimes be a company offering to monitor your trademarks, patents and domains for possible infringers.

   The entity typically has a name like "United States Trademark Registration Office" or other form following REGISTRATION OFFICE, or MONITORING SERVICE, or may even purport to be a law office in another country.

Most often these offerings are inadequate, if not unnecessary, and are almost always more expensive than if you use a legitimate service.

   As a matter of precaution, always check the address of any letter or email requesting money. Trademark or patent correspondence from the USPTO will be from its office in Alexandria, Virginia (typically P.O. Box 1450), or from the domain "@uspto.gov." Your domain registrar almost always sends email. In 12 years, I have never received snail mail from any of my several domain registrars.

   Correspondence regarding foreign registration or services, such as from the "International Register of Trademarks", or the "International Register of Patents and Trademarks" can be from anywhere in the world because they are always bogus. There is no official international registration entity of trademarks, patents, or domains or even international applications for them.

   Another bogus letter or email ties together trademarks and domains, warning you to register your trademark-like domains with them to protect your trademarks. The letter may mention the "Internet Corporation for Assigned Names and Numbers" (ICANN) or "Trademark Clearinghouse" (TMCH) and may use another abbreviation containing "TLD", such as generic top-level domains (gTLDs).

   While you may be able to legitimately register a foreign trademark or domain, you are most often wasting money if you are not conducting business in the country, and if you will be conducting business in the country, you will need a legitimate partner to monitor and work with you.

Companies in the U.S. will state somewhere that "This is not an Invoice", or "Not a government agency" (if they want to stay out of jail), but foreign solicitations typically lack these because they are beyond U.S. fraud protections.

   If you are existing client and you receive something questionable, go ahead and send a scan or photo to me as a precaution - no charge. If you are interested in a foreign trademark, patent and domain filings, please contact me. I am already filing or handling foreign applications for other clients with local law firms in other countries, and they have the experience to know how to proceed correctly.

Product Design as a Trademark

One of the more enjoyable aspects of my work is working with clients to determine whether and how intellectual property protection is available to their ideas. For the most part, protectable ideas have function or significant creativity. How and to what degree an idea has function and significant creativity is important to both intellectual property protection and to marketability. The best ideas generally have both, while market flops usually lack one or both.

 

There are four types of intellectual property protection. Regular patents protect ideas that have function and are thus in some way related to a definable product. Trademark protects the public aspects (name, logo, etc.) associated with the product or service, but not the product or service. Copyright protects the creative aspects of an idea, which may be incorporated into or related to a product, but like trademark, copyright does not product the actual product. Trade secrets and contracts protect ideas as long as the owner asserts proper care over the keeping the idea a secret.

 

The products of industrial design, unfortunately, generally lack novelty (newness), or are combination of off-the-shelf goods that work as expected (which is called obviousness), or have too much function, so that patent and copyright protection are not available. In addition, a product must be put into the marketplace to make money on it, so the owners of the most product ideas can't keep the product a trade secret, and make money.

 

In large part, the appearance of these design related ideas and products is developed by people with academic training and work experience in the design arts, and often an eye for attractive and marketable designs. Design artists, however, rarely get intellectual property protection for one or more of the reasons above. These reasons are in significant part due to a protection void that exists because of a public policy decision made many years ago. The gist of the policy is that artistic protection of products would stifle competition, while the absence of artistic protection would drive innovation through building on unprotected ideas.

 

To a degree, both premises are correct. Patents protect the idea and ALL derivatives for 20 years, which is effectively an entire generation, while copyright protects the idea and ALL derivatives for a lifetime, plus 70 years, or up to 120 years, depending on ownership at the time of creation. Not surprisingly, some persons at Stanford Law School called this protection FOREVER. See "A Fair(y) Use Tale" at 6:08. One example might be if the design of the Model T had had patent or copyright protection, the pace of automotive design would have slowed so much that we might be driving Edsels.

 

So fortunately for the public, the products of industrial design art are not protected. But, fortunately for designers and the companies, the dichotomy of protection is twisted in two ways. These are through design patents (a type of patent), and trade dress (a relative of trademark).

 

While regular patents protect function, design patents reveal and protect only the design of the product. The first iteration of many products had design patent protection - gloves, shoes, bottles, cars, eyeglass and sunglass frames, a computer mouse, a Batman-like costume, purses, and electronic devices. The limitations of design patents are that the design must still meet the novelty and non-obviousness requirements, function is not protected, protection lasts only 14 years, and color distinctiveness is generally not approved.

 

Though Samsung lost its design patent infringement (Apple, 2012), the iPhone design patent expires in 2020. This does not mean though, that the iPhone design might not protected. As noted above, trade dress is a relative of trademark in providing protection to the public aspects associated with the product or service. The distinction is that trademark applies to names, phrases, images, logos and sound (such as the Intel tune, the AOL mailman, and the MGM lion), which can be protected from first use. Trade dress is quite difference in that it is the appearance seen by the public that gets protection, and protection generally requires five years of use before the owner can even file for registration.

 

Most of the public would recognize trade dress when seeing it. That recognition, in fact, is the requirement for protectable trade dress. Say for example, it is night, you and the family are hungry and looking for a place to eat, but you are also in a hurry and driving too fast to read the signs (but the police are not looking, so don't worry).

 

You first see a place with a horizontal band of an orange, green and red stripe across the doorway, but you don't stop because you know it is a 7-Eleven. Then, you see a place with a horizontal band of a red, yellow and green stripe across the doorway, but you don't stop because you know it is a Taco Bell. Then you see a big guitar with a circular pattern and stop - at a Hard Rock Cafe!

 

These are the features of trade dress - the specific ARRANGEMENT and COLOR the public aspects associates with a product or service to the maker. Another way of looking at trademarks and trade dress is that sufficient differences mean a different company - such as the different color bands between 7 Eleven and Taco Bell, or a huge oboe in front of restaurant means the place is not a Hard Rock Cafe! Which brings us to a recent and interesting case.

 

As stated above, a new design of shoes can the protected by a design patent, but the patent expires after a fixed time. Has the shoemaker then lost protection? Not if in the 14 years of patent protection, the shoemaker made the effort to make sure the public associates the shoe design to the shoemaker. Then, the shoe design becomes protected trade dress.

 

For example, in 1992, Christian Louboutin introduced and started a line of shoes with a red sole. By 2008, Christian Louboutin had so many red sole shoes that the Trademark Office granted him two registrations for red colored shoe soles.

 

Consequently, when Yves Saint Laurent began producing red shoes (soles and upper), Christian Louboutin saw red in more just his shoes.

 

Generally in court cases, one side wins, and the other side losses. Louboutin vs. Yves Saint Laurent has the rare distinction of a win by both sides. Recall that trade dress applies to the specific ARRANGEMENT and COLORS the public aspects associates with a product or service to the maker. Unlike trademarks (words, phrases, images), the Louboutin registration is for the product (red soles) which is a rare registration, so some people thought (and Yves Saint Laurent was hoping), the registration would be overruled. The court, however, upheld the registration, so win by Louboutin, but the court also recognized that the Yves Saint Laurent shoes have both red soles and a red upper. The court said the Yves Saint Laurent design was different enough that the public would recognize the difference, so win by Yves Saint Laurent.

 

Which just about closes this story, except for a question and conclusion. The question is whether Apple will lose iPhone design protection when the patent expires? The likely answer is no, unless Apple drops the whole line. That is because after the required five years (2006 - 2011), Apple filed for and received trade dress registration for the iPhone design!

 

Copyright For Critical Reading and Comp

Copyright protects creative ideas that are perceivably recorded in specific formats. An idea is creative if it more than minimal (a title, a fact, and Bob Spongee are minimal), not functional (furniture, instructions, or a process) and not based on a known arrangement (alphabet, logic, or syntax).

Compare Bob Spongee and SpongeBob Squarepants


An idea does not have to be wholly original for protection, but knowledge of another person's similar work negates protection of the similar ideas. Perceivably recorded means that the idea is permanently documented to be seen or heard, e.g., paper, an audio or visual recording media, digital media, or on a composition of nature, such as stone. Unrecorded ideas are not protected.

Copyright applies to (1) literary works; (2) musical works and their words; (3) dramatic works and their music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.
The copyright belongs to the creator from the moment of creation. A copyright may be transferred by assignment, employment, or through law. Assignment means that the creator subsequently transfers the copyright to another person. A transfer by employment occurs concurrently at the moment of creation by the employment contract or in circumstances by which the creation occurred through and for the employer. A transfer through law, which is generally known as a work for hire, applies only to select works, such as a contribution to a collective work (newspaper or magazine), as a part of a motion picture or other audiovisual work, as a translation or supplementary work, as a compilation (anthology or atlas), as an instructional text, or as a test or answer material. A creator may reinstate ownership in certain cases.

A copyright allows the owner to do and control (1) reproduction of the work; (2) preparation of derivative works based on the work; (3) distribution of copies to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) public performance of the literary, musical, dramatic, and choreographic work, pantomime, motion pictures and other audiovisual work; (5) public display of the literary, musical, dramatic, and choreographic work, pantomime, or pictorial, graphic, or sculptural work, including the individual images of a motion picture or other audiovisual work; and (6) public performance of a digital audio transmission of sound recordings.

Copyright term is the time that an owner has copyrights. For new works, an individual owns the copyright for her or his remaining life copyright, at which time the copyright passes to the family (or company) for 70 years after the creator's death. If a company was the owner at the time of creation, the copyright expires the earlier of 120 years after creation or 95 years after publication (showing the work to the public). The copyright of works created before 1976 depends on many factors, including the money to fight corporations. Walt Disney created and published Mickey Mouse in 1928, so that copyright lapses in 2023. The Hill sisters created and published "Happy Birthday to You" before 1921 but Warner Chappel Music claims the copyright (initially registered in 1935) will not lapse
until 2030.

Marking is a declaration of ownership. There are three minimal requirements for a marking. These are the word "Copyright" or the circle c (©), the year of creation, and the name of the owner. A combination of the word Copyright and the circle c may be used as these focus attention to the marking. If the work is later modified, or republished, the year of modification or republication is added (Copyright © 2010, 2012, Owner Name).

Registration is used to provide a government record of the copyright. Registration is not required to declare a copyright, but is required to show ownership in court of law. An owner should record registration within five years of creation to have incontestable proof of ownership. Registration also provides the ability for compensation not related to losses, which is how a music company gets $30,000 for infringement of a 99-cent download.

Moral rights provide an author the right to dissociate the author from a visual artwork (if for instance an owner uses a work in a repugnant way) and the right to demand maintenance of the integrity of the visual artwork.
Infringement is an unauthorized act of one or more of the six copyrights, of a work protected in one of the eight classes, during the copyright term. Infringement occurs by directly performing an unauthorized act, intentionally inducing or contributing to someone else's infringement, or by having a financial interest and knowing or suspecting of infringement and having the ability to stop the infringement.

Fair use is an unlicensed and permissive exception to infringement. Fair use includes criticism, comment, news reporting, teaching, scholarship, and research, but only a detailed and complete four-factors analysis can determine whether or not a particular use is fair. The four factors look at (1) the form and originality of the original work, (2) the form of the copy as a whole and whether the copy is a non-commercial work, (3) the amount of copied material in relation to the amount in the original and in the copy; and (4) the market of the original material, the market material of the copied material, and how the copied material affects the market for the original material. Two important contrasts are that parody is fair use, but satire is infringement, and that attribution excuses plagiarism, but not infringement.

See http://www.youtube.com/watch?v=CJn_jC4FNDo

Cloud Computing, Part III - Online File Sharing and Cloud-Based Office Suites

This is the third article on Cloud Computing. Part I discussed programs that are accessed and used via the Internet. These programs are rented from Application-Service-Providers (ASP) and Software-as-a-Service (SaaS) providers, and have the benefit that the user never needs to install or upgrade the programs. Their downside is that an active Internet connection is generally always needed to use the programs. Part II covered use of the Internet to provide electronic file backup and restore services. These services are called offsite storage and have the benefit that your electronic files are safe from harm or theft in your office. Their downside is that the files may be subject to compromise both by harm or theft at the offsite location.

Part III, provided here, discusses use of the Internet for sharing documents and for creating and editing documents. This article includes minor technical discussions so that readers may understand the legal and privacy implications for using various file sharing and document creation services.
Online File Sharing

File sharing works primarily two ways, server-client and peer-to-peer. As with ASP and SaaS, server-client means a central computer (the server) holds files and controls access by another computer (the client). Peer-to-peer means two computers are sharing information with each other without regard to either computer being between other computers.

Server-client file sharing predates the Internet through newsgroups (1980), which were also called usenets, or bulletin boards. Each server had a telephone number through which people could connect a computer. The Internet allowed multiple servers and multiple users to connect via telephone connections, with cable and DSL connections later succeeding telephone service. Readers may recognize that web sites, forums, and social media are current examples of server-client file sharing.

Peer-to-peer file sharing means that people may share files without using a intermediary server. Early peer-to-peer file sharing required users to install a common program, such as Napster and Grokster, so a user could tell other users what files were available for sharing, and at least one server to facilitate the exchange of file lists. As many users unfortunately chose to share copyright protected files, the server owners were liable for contributory copyright infringement.

Yahoo took a different tactic and introduced Yahoo Groups to allow people to upload pictures and other files for sharing. Yahoo Groups isn't quite a client-server operation because you can use any web browser and it isn't peer-to-peer because the files are on a Yahoo server. In addition, the users (called "organizers") who create the group have the ability to make the files public or private to select people. Yahoo Groups is free, but there are three important issues. First, the files on Yahoo Groups are not encrypted (unless the uploaded file is encrypted) so anyone with access can read a file. Second, files are publicly available unless access is correctly set to the authorized people. Lastly, as the files are on a Yahoo server, you are trusting Yahoo with oversight that the information will not be compromised.

Like Yahoo Groups, Google's file sharing services are free at a basic level and use a web browser for file operations. Google's Picassa allows for photo uploading and editing. Google docs allows for the ability to have both document sharing and real-time editing of letters and spreadsheets. Another Google difference is being able to control access link-sharing, meaning anyone with the URL can access the document. As with Yahoo Groups, the files on Google docs are not independently encrypted so you must properly set controlled access, and trust that Google employees will not snoop. Server-client services are now generally fee-based, which helps pay for the software, the sharing services, and for file storage.
Other companies allow you to store files in a designated folder on your computer, and the company then copies the files to the computers of people you designate, and its servers. The company then updates the files on all computers with automatic peer-to-peer updates. Examples of these companies include Dropbox, Box.net, FilesAnywhere, CloudMe, CrashPlan, Egnyte, iCloud, Mozy, SpiderOak, SugarSync, TitanFile, Ubuntu One, Windows Live SkyDrive, Wuala and ZumoDrive. Most of these companies have a tiered free/ fee service plan for keeping the files current regardless of whether you or another users make changes. Most companies also have applications for Android, BlackBerry, iPad or iPhone so you can keep your files current across all your devices.

There are major concerns with these services. First, the folder of your computer may be a 'public' folder that provides for public access to anyone who has the link (this is like Picassa and Google docs), so you must be careful to place sensitive files in the correct folder. Second, if you lose a mobile device, you must remotely delete the folder on the device, or the files, or remotely erase the device. Third, as with any offsite file storage scheme, you trust the integrity and confidentiality of your electronic files to a third party. As previously mentioned, personal encryption is the only way to have complete assurance of confidentiality. Lastly, these companies sometimes go out of business, so you should have a separate backup of every file you store online.

Cloud-Based Office Suites

Cloud-Based Office Suites are basically online document creation providers. Depending on the provider, you open your browser to the provider's website, login, use the provided features to create and format a document, and set permissions of who can set and edit the file. The market is still in flux, but the primary players in the field are Google Apps, Zoho, and Microsoft Office 365 (which replaces Office Live).

Google packages it's Apps' service as a combined email, document, and calendar/ ToDo service with tiered free/ fee plans. You register for a google email (gmail) address, such as yourname@gmail.com, and for free, you get 7 GB of storage for email and documents. There is a slight perk that free file storage slowly increases at 128 MB per day. For a nominal $50 per year, the storage is bumped up to 25 GB per year. As an online office suite, Google Apps is austere. You get the basic font formats, plus nine paragraph formats, most of which apply to titles and headings. The basic file, edit and insert toolbars, functions and symbols are available, as is an equation toolbar. You also have the ability to share documents by assigning read or write privileges to individuals (collaborators) through weblinks, or to the public, or to publish the file on a webpage. Google services are also available for Droid and Blackberry Smartphones. Google also has a Groups (discussions) feature, and is getting into the online meeting business (openmeetings) though at this time I would classify the openmeetings service as being in beta testing stage.

Zoho (which has a corporate office in Pleasanton) touts itself as an online provider of 22 collaboration services. Some are the same services as Google (including a Zoho.com email address), and in fact, Zoho allows you both to register using your Google login, and "lets you seamlessly manage members of your private community from Google, attach files from Google Docs and much more, from within Zoho apps." Zoho, however, surpasses Google as a business service provider by providing an accounting application, a CRM (customer resource management) application, HR services, discussion groups, project management, online meetings and other applications. Like other online providers, Zoho is a free/ tiered fee service provider. All Zoho services have a free minimum level with 1 GB of storage (total). Each service also has an enhanced paid service, such as $3 per month per additional 5GB of storage. The free HR service tracks up to 10 employees, with more than 10 employees costing $49 per month, The free online meeting service is one host-one participant-one hour per meeting, while one year of one host - five participant unlimited meetings is $115. This is much less than gotomeeting, which is $49 per month, though gotomeeting allows for more attendees. The advantage and yet drawback to Zoho is its pricing structure. You can buy only the services you want, but to get bulk pricing, you'll have to call Zoho and talk to a customer service representative (unless you work in the 4900 Hopyard Road building).
After years of sticking to packaged software, Microsoft finally relented in 2011 to the 21st Century and introduced Microsoft Office 365 as its cloud-based application suite. The advantages of Office 365 are that if you are used to Office 2007 or Office 2010, you'll likely be comfortable with the ribbon features of Office 365, it has more office suite features than other online applications, and the pricing isn't bad. Office 365 is just $6 per month per user for the usual office suite applications with 25 GB of storage. Businesses with corporate email and IT functions might consider the enterprise-level packages which have file sharing and online meetings, though the lower level enterprise package bizarrely does not allow office suite file editing.

Overall, moving some work to the "cloud" is beneficial for mobile access, sharing, and storage. Google docs allows me to type notes on my smartphone during meetings, then to upload the file for safe storage, share the file, and make changes later, regardless of whether I'm at my desk or elsewhere. A free Zoho account allows for in-office and remote business administration work.

Heavy Use Disruption

If there will be one significant problem to Cloud Computing, it will be resistance from Internet Service Providers regarding the amount of data (files and programs) sent through their service lines. For example, Comcast instituted in 2010 a zero-tolerance rule for heavy Internet users, which Comcast saw at the time primarily as people illegally downloading movies. Under the zero-tolerance rule, any user exceeding 250GB of broadband use in a calendar month, which means both downloads (office suite use and movies) and uploads (storage) gets cut-off - with no notice or appeal. At the time of putting the rule in place, 250GB of use was both rare and generally due to illegal downloads. Now, however, the combinations of online storage uploads, online Office Suite downloads and legal movie (Netflix, etc.) downloads will and has raised monthly usage to a significant fraction of the 250GB limit. The rule, however, is blind to legal use of the Internet, and these services may cause a Comcast user to permanently lose service without notice. Consequently, Comcast users should monitor their use to prevent disruption, or upgrade to a business plan.

Online File Sharing and Cloud-Based Office Suites provide ease and assurance for backup storage, sharing and collaboration, automatic updates, and remote access to improve personal and business operations for both office and mobile situations. These are tempered by concerns for confidentiality and generally minor, but potentially significant uncertainties. In the balance of relieving apprehension and uncertainty in office administration, and adding complications, Online File Sharing and Cloud-Based Office Suites have significant benefits for the legal office.

Copyright ©2011 Gerald R. Prettyman. Gerald R. Prettyman is an Intellectual Property and Patent Attorney serving entrepreneurs, start-ups, and established businesses seeking to protect and profit from their ideas. Please visit http://GotABrightIdea.com.

Cloud Computing, Part II - Electronic File Backup

Going paperless has been a computing mantra for decades. Lawyers have experienced the opposite result - more paper files than ever, but this is because the computer era generated more information for review. As electronic files are sensitive to media failure, backups are needed.

Onsite electronic file backup use attached servers, drives and network-attached storage (NAS). These are generally low tech, making them inexpensive, and even portable. These advantages are offset by the risk of data loss from hardware failure, disaster damage, and of hardware theft or data breach with the resulting worries about client and office data security. (This is a reason to use encryption software in your office).

The fast-pace of electronic storage development also created a problem for the recovery of data stored on media which became obsolete in as little as 5 years.
Offsite electronic file backup and online document storage reduce these problems by moving data and its inherent problems to the data storage company. Offsite electronic file backup refers to an offsite company with servers to which onsite files are copied. Some users even keep their files offsite and download the documents for viewing and editing, then upload the changed document. This was called online document storage, but the inability to handle multiple users and the upload and download efforts limited the attractiveness of both solutions.

In 2010, Application-Service-Providers (ASP) and Software-as-a-Service (SaaS) providers developed software that could handle multiple users and made offsite electronic file storage and recovery easy and inexpensive. For clarity, we'll address offsite electronic file backup first and then online document storage.
Offsite (online) backup software may be ASP, SaaS or both. The major benefit of online backup is the assurance that a hard drive failure, theft, or local disaster does not wipe out your data. With some companies, you also have remote access as well when you are out of the office.

There is though two points of concern regarding data security. The first is during data transfer where if you are on an unsecured (public) Internet system, your files are available to snooping during transfer. The second is during storage, where your files might be accessible to anyone with electronic or physical access to the servers.

While the online backup companies state your data is protected, the actual circumstance might be different. Unless the data is encrypted before leaving your computer, your protection is dependent on the online backup company not snooping, and on employees adhering to a 'privacy' policy. Employee data breaches (theft) were a common way to farm email addresses for the spam market, which led to several lawsuits (Ameritrade, among them). These breaches resulted in some companies paying for credit monitoring for the affected individuals, and forced the companies to use data encryption. Electronic file backup companies, however, are not required to encrypt your data. (This is another reason to use encryption software in your office).

Another concern with online electronic file backup regards the tolerance of Internet Service Providers to heavy Internet use. Electronic file backup counts against your monthly limit, so if your ISP limits you to 250 GB of monthly service, your first backup should be spaced over an end and start of two months. Here is some information about a few online electronic file backup companies as of July 2011.

Adrive (adrive.com) provides three levels of manual (not automatic) backup service, Basic, Signature, and Premium. The Basic plan provides 50 GB of free storage using a SaaS (browser) interface, and it has file sharing (discussed in Part 3). To use the Basic plan, you open your browser, logon to Adrive, which opens a special window, and then select and transfer files.
The Signature plan is $6.95 per month for 50 GB of storage and includes ASP desktop software, which has more functionality than the basic (browser) plan, and some useful additional services. The Premium plan starts with 100 GB of storage at $13.95 per month and includes the same services as the Signature plan. Two other selling points are that Adrive allows you to backup any computer or drive connected to your computer, and ADrive has Zoho online editing (discussed in Part 3).

Adrive has two significant disadvantages. First, Adrive lacks both transfer and storage encryption, so you MUST encrypt confidential files before uploading them. Second, Adrive storage is prone to file redundancy and orphans. If you rename or delete files on your local drive, you would have to manually rename or delete the files from the 'Adrive' backup, or have the old files still in Adrive storage. This can be good if you like keeping old files, but it also increases your storage use and expense.
To recover your files, you access Adrive through your browser or the ASP desktop software, and manually select and download the files. This may take a significant amount of time for a total data loss and would count towards your monthly ISP service limit.

Carbonite (carbonite.com) is a two-tier automated and encrypted backup service. You download and install the Carbonite software. It then runs in the background, waiting for you to walk away so it can backup your files. Carbonite automatically copies and encrypts your files and transmits them to the Carbonite server for storage. Carbonite also allows you to create a custom encryption key.
The Carbonite Home/Office plan provides unlimited online backups for $59 per computer per year. Carbonite automatically deletes from its files any files that you renamed or deleted, but with a 30-day delay, so there is usually enough time to realize and recover files you want to keep. To recover files from Carbonite, you go online, log in and download the files. Carbonite also has a smartphone application that allows file access from the iPhone, iPad, Android or BlackBerry, except for custom encryption users.

Carbonite 'unlimited' backups are not really unlimited. Carbonite does not automatically backup software programs (executable files), temporary files, system files, or files from network or external drives. You can manually backup videos, executable files, files larger than 4GB, and additional internal hard drives, but these are manual operations in the Home/Office plan. Carbonite also slows uploads when over 200 GB is on its servers.

The Carbonite Business plan allows an unlimited number of computers, and permits external hard drive backups, but limits the account to 250GB of backup at a pricey $229. Additional backup space in 50GB increments is available for $46 per year. Unless there are five or more computers, Carbonite might be overly expensive compared to other services.

Mozy (mozy.com) is also a two-tier plan automated and encrypted backup service. While easy to use, Mozy has quirky pricing plans. Mozy charges $71.88 per year for 50GB and one computer, which is more expensive than Carbonite, or $119.88 for 125 GB. Additional computers are another $24 per year per computer plus an additional $24 per year for a mere 20 GB of storage. A comparison to other services and actual conditions would require a spreadsheet. On the plus side, recovery via Mozy is somewhat smooth through the restore manager in the software that allows file streaming directly to your computer. Mozy also has free iPhone, iPad, and Android applications so monitoring and viewing your backups.

Backblaze (backblaze.com) is a single-tier automated and encrypted backup service. Like Carbonite and Mozy, the program runs in the background, waiting for you to walk away so it can copy, encrypt and transmit your files. You can also set Backblaze for manual activation, meaning you can walk away for a break and not have the computer occupied in a backup that takes a couple minutes to disengage.
At $5 per month per computer (or save $10 by purchasing a year for $50!) with unlimited storage, Backblaze is effective in both ease and expense. Backblaze also allows you to create a custom encryption key. This free service means that no one but you can decrypt the files - not even Backblaze, so there is no encryption breach-risk.

On addition, you can change the settings and backup executable files and large files, and backup multiple internal and external (USB) drives, but not network drives. Adding these files can result in significant data streaming, which might cause a problem with your ISP limit.

Recovery with Backblaze over the Internet is free, but as with the other services, file streaming is time-consuming. Backblaze offers a DVD recovery at $99 per disk and a USB drive is $189. Backblaze also has a computer location tracking function, but not mobile applications.

IDrive (idrive.com) also provides tiered service. IDrive allows 5 GB free, 150 GB at $4.95 per month per PC, 500 GB at $14.95 per month for up to 5 PCs, unlimited storage for $49.50 per year for one computer with there is another plan of $9.95 per 50 GB per month for multiple PCs, and higher storage of a higher price. As with other companies, if you delete the data from your desktop, the company deletes the corresponding data from its servers after 30 days. The problem with IDrive is that after 150GB of data, IDrive throttles your upload rate, so uploads are slower.

There are many other companies in the market, and some companies now work with you to provide both local and offsite backups. For lawyers, the primary consideration should be encryption (more on this in Part 3). Data breaches are a substantial risk and at a minimum could result in paying for credit monitoring for clients plus other expenses and fees. The other considerations of the amount of storage and the ease of use for backups, access, and recovery, are essentially a matter of price. This author has used Backblaze for over a year, primarily because the balance of encryption, limited functionality, and price work well in this office. Offices with several computers or sites would likely select a different service. Another consideration is the use of local encrypted backups as well.

Gerald R. Prettyman is an Intellectual Property and Patent Attorney serving entrepreneurs, start-ups, and established businesses seeking to protect and profit from their ideas. Please visit http://GotABrightIdea.com.

Cloud Computing, Part I - Software: ASP and SaaS

Marketing hype (illusion) portrays cloud computing as the newest revolution in computers. In reality, cloud computing started about the same time Joni Mitchell sang "Both Sides Now", to create an interactive network ("from both sides") of computers and information transfer with many users distributed over a wide area. The term cloud with respect to information transfer is even older, having its origin in the use of a cloud to represent a network of interconnected users in telephone network patent applications and other documents. So if you "really don't know clouds at all," these articles are for you. (Use of "Both Sides Now" is fair use for purposes of education.)

The abbreviations ASP and SaaS respectively mean Application-Service-Provider and Software-as-a-Service. To a legal office, they are essentially the same. The legal office has a personal computer, laptop, tablet or other computing device that receives one or more programs via the Internet (cloud) from a provider company that stores the programs on its own computers, and that provider company is responsible for writing, providing and updating the software.

Corporations and academic centers of the 1960's to the mid-90's used a similar concept with the mainframe and 'dumb' terminals. The major distinction between then and now is that the mainframe both stored the program, and handled all the computing tasks. The terminal was merely an interface and output display, hence the 'dumb' term. ASP and SaaS push the program to the personal computer, which with its significant electronics and operating system handles the computing tasks, the data storage, the interface devices and the display.

As with the mainframe and dumb terminals, the cloud is the communication network between the program storage computer, and the display. The major distinction of ASP and SaaS is in reducing program storage and redundancy in the personal computer network.

An ASP program mimics the traditional form of a personal computer (PC) loaded software by handling the information computing, interface, and display. In other words, ASP programs take the place of your PC stored program, including software for the menu bar that displays commands, and the programs performs the commands for local operations such as opening and closing files, viewing and printing information, and passing instructions to the computer on performing these tasks.
The ASP advantage is that the software company can lower its efforts (time, expense, etc.) of writing software for these common local operations, and the legal office avoids installing the same program on multiple computers. ASP, however, can still have conflicts with hardware or other software running on the PC.

SaaS programs, on the other hand, handle the computing work on your PC, but lets your computer handle the local operations through another program on the PC, such as the browser. Thus, SaaS additionally reduces conflicts at the user's end, and because every SaaS program has the same interface for all programs, the SaaS user doesn't have to learn multiple menu bars (or ribbons) or configure multiple programs for viewing and printing information.

Theoretically at least, ASP and SaaS software is less expensive as well since the software company has lower expenses, and the ASP and SaaS user doesn’t have to spend effort, time and money loading and updating software.

In a sense, ASP and SaaS provide a somewhat back-to-the-future theme. There are discussions, and certain components already in place, to lower PC costs by returning to dumb-terminals, i.e., a personal computer that lacks even an on-board operating system. Microsoft, not surprisingly, is not enamored with the idea.
For the legal office, most software categories are or soon will be available by ASP or SaaS. An online search for "asp legal software" for example, returned many links for Case Management Software, Litigation Support Software, and Document Databases. The American Bar Association has a free website titled "FYI: Software as a Service (SaaS) for Lawyers" at http://tinyurl.com/ABASaaS. The website has several pages of current information on multiple topics, including features to look at, such as:

Time & Billing Software: Comparison Chart
Practice & Case Management Software Comparison
Litigation Support Software Comparison Chart
FYI: Starting a Website
FYI: Software as a Service (SaaS) for Lawyers
FYI: Feature Comparison - Major Blog Providers
FYI: Playing it Safe With Encryption
FYI: Technology Terms Defined
Metadata Ethics Opinions Around the U.S.
Metadata Comparison Chart: 50 State Map

The primary disadvantages to ASP and SaaS are service interruptions. These occur if Internet service is not available or slow, the ASP and SaaS provider is offline, or if an upgrade of any software, installed or cloud-based, causes a problem. The first three conditions are equivalent in frustration to a power interruption, while the second is a constant threat to any software use.

The due diligence is researching the Internet and other users to be certain the cloud-based software will not cause a service interruption, and determining in advance how to deal with a service interruption. When properly balanced and licensed between service and fees, ASP and SaaS are worthwhile to effortlessly keep software up-to-date without on-hand 'IT' effort.

Why file your corporation or LLC in California

I received a question about filing for a business outside of California. While I agree that paying $800 year for a small business is ridiculous, the solution is not becoming a foreign (out-of-California) entity. I'll explain below, but the best solution sometimes a simple proprietorship or partnership. Here's why.

Any limited liability entity headquartered in California needs to register in California.
1) Filing in California gives you the privilege of enforcing your contractual rights in California. A court will dismiss a non-registered plaintiff because the privilege to enforce your contractual rights is in the state of the headquarters, as documented by the Articles.
2) California requires entities doing business in California but registered outside of California to file as a foreign entity. The filing expenses are the same and this provides full rights (including name protection through registration), but at the same annual cost of income tax (Franchise Fee). A foreign entity can omit the foreign entity registration if its operations in California are insubstantial, as by being transient or without an instate office, officers, or employees. If a person with the entity lives and conducts business for the entity in California, it qualifies as a foreign entity. Another way of thinking about registration is whether the entity is active in California. If the assets and operations are in another state, foreign entity registration is less likely a requirement.
3) While its true that other states do not require disclosure of officer names, a good sleuth can get the names without a lot of effort.
4) In every state, you must name an agent for service of process. Outside of California, that means 'hiring' a company to have a doorway and a person inside the door during regular business hours. The job of the person is to receive lawsuits and notices. The job of the person is NOT to make sure you receive the lawsuit or notice. An entity is subject to a default judgment and registration suspension if the entity fails to timely and properly reply.
5) Some states require you to effectively include portions of the operating agreement (bylaws) in your articles. This can tell people far more about your company than the company name, and require significant effort making sure the articles comply with the requirement.
6) California is comparatively lax about how the owners run the entity. Don't commit fraud, or break financial or security laws, and you are OK. Other states tell you how to run your business and require these statements in your articles or operating agreement.
7) Lastly - failure to register in California may result in substantial fines based on income and the minimum franchise fees.

As to non-registration (a simple partnership):
The usual goal of small business registration is limited liability. Liability arises from contractual obligations or negligence. If the business hasn't signed contracts of obligation and is not yet providing a product or service, the risk of liability is basically the same as having a hobby. If an obligation would risk more than you have on-hand to fulfill the obligation, then limited liability is warranted. Otherwise- what is there to worry about? If at some time you must register and quickly, there are ways to get registration within a week or two for the expense of a few hundred dollars, which is much less than the annual minimum franchise fee.

Also - many insurance companies offer errors and omission insurance. O&E covers you for business losses based on circumstances outside your control, generally including simple negligence, and some contractual obligations based on the policy. You are not covered for gross or intention negligence, fraud or breaking financial or security laws - but then limited liability does not cover those either.

Lastly - if you want name or brand protection, the filing of a city business license, county fictitious statement, and state and federal trademarks decently provide that protection. Caveat - the California Secretary of State does not crosscheck the business entity and trademark registrations. You get that security ONLY by registration.