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In
the beginning, that which Is [GOD] is all there was, and there
was nothing else. Yet All That Is [GOD] could not know itself
because All That Is [GOD] is all there was, and there was
nothing else. And so, All That Is [GOD] . . . was not, For
in the absence of something else, All That Is, [GOD] is not.
This is the great Is/Not Is to which mystics have referred
from the beginning of time.
Now All That Is knew it was all there was -- but this was
not enough, for it could only know its utter magnificence
conceptually, not experientially. Yet the experience of itself
is that for which it longed, for it wanted to know what it
felt like to be so magnificent. Still, this was impossible,
because the very term "magnificent" is a relative term. All
That Is could not know what it felt like to be magnificent
unless that which is not, that which IS, is not.
Do you understand this?
I think so. Keep going.
Alright.
The one thing that All There Is knew is that there was nothing
else. And so It could, and would, never know Itself from a
reference point outside of itself. Such a point did not exist.
Only one reference point existed, and that was the single
place within. The "Is-Not-Is." The Am-Not Am. Still the All
of Everything chose to know Itself experientially. This energy
-- this pure, unseen, unheard, unobserved, and therefore unknown-by-anyone-else
energy chose to experience Itself as the utter magnificence
It was. In order to do this, It realized It would have to
use a reference point within.
It reasoned, quite correctly, that any portion of Itself would
necessarily have to be less than the whole, and that if It
thus simply divided Itself into portions, each portion, being
less than the whole, could look back on the rest of Itself
and see magnificence.
And so All That Is divided Itself -- becoming, in one glorious
moment, that which is that. For the first time, this and that
existed, quite apart from each other. And still, both existed
simultaneously. As did all that was neither.
Thus, three elements suddenly existed: that which is here.
That which is there. And that which is neither here nor there
-- but which must exist for here and there to exist.
It is the nothing which holds the everything. It is the non-space
which holds the space. It is the all which holds the parts."1
I excused my self about that time to get a couple of more
beers but I realized for the first time in my life that .
. . could it really be . . . YES, GOD is a lawyer.
1Conversations with God; an uncommon dialogue (Neale Donald
Walsh 1995)
John Allen
WHAT IS INTELLECTUAL PROPERTY?
Until recently, it seemed that only authors, inventors, and
corporations and their lawyers had any occasion to encounter
intellectual property laws. With computer technology and the
Internet available to practically everyone, these laws and
their protections have become much more relevant, making it
worthwhile to have some knowledge of the subject. "Intellectual
property" involves three major areas: patents, trademarks,
and copyrights.
Patents
A patent is the grant of a property right by the federal government
to an inventor. A patent lasts 20 years from the date on which
the application for it was filed. A patent gives "negative"
rights to its owner. Instead of the right to make, use, sell,
or import an invention, a patent is the right to exclude others
from these activities.
A person who "invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent." Collectively,
the items that can be patented encompass most man-made products
and the processes for making them. "Usefulness" means having
a useful purpose and, in the case of a machine, being operable
for the intended purpose. The subject of a patent must be
nonobvious. "Nonobvious" means that the invention is different
enough from existing technology and knowledge that it would
not be obvious to a person with skill in the field.
Our courts have set the limits on what can be patented, excluding
laws of nature, physical phenomena, and abstract ideas. A
patent can be granted for a new machine, for example, but
not on the idea or suggestion of the new machine. A complete
description of the subject matter for which a patent is sought
is a required part of the patenting process.
Trademarks
A trademark is a word, phrase, symbol, or design, or a combination
thereof, that identifies and distinguishes the source or origin
of goods or services. A service mark is like a trademark except
that it refers to a service instead of a product. Trademark
rights can be used to prevent others from using a confusingly
similar mark but not to prevent the making of the same goods
or selling such goods under a nonconfusing mark.
The filing of a registration application with the federal
Patent and Trademark Office is one way to establish rights
in a mark, but rights also can arise simply from the actual
use of a mark. There are greater benefits from registration,
however, such as a presumption that the owner of the registered
mark is, in fact, its owner and is entitled to use it across
the country. Unlike patents and copyrights, trademark rights
can last as long as the trademark is used to identify goods
or services, although the registration must be renewed every
10 years and certain information must be filed with the government
to keep the registration alive.
Copyrights
A copyright protects the writings of an author of "original
works of authorship" from unauthorized copying. Published
and unpublished works of a literary, dramatic, musical, or
artistic nature are protected by copyright law.
Copyrights are registered in the Copyright Office in the Library
of Congress, but a copyright is secured automatically when
the work is fixed in a copy or phonorecord for the first time.
Federal law gives the owner of a copyright the exclusive right
to do, or to authorize others to do, the following things:
reproduce the work in copies or phonorecords, prepare derivative
works, distribute copies or photorecords to the public, perform
the work publicly, display the work publicly, and, for sound
recordings, perform the work publicly by means of a digital
audio transmission. Generally, any work created after January
1, 1978 is protected for the author's life, plus 50 years.
EMPLOYEE OR INDEPENDENT CONTRACTOR?
Classifying a person as an employee rather than as an independent
contractor has wide-ranging legal consequences. For example,
an employer generally must withhold income taxes, withhold
and pay Social Security and Medicare taxes, and pay unemployment
taxes, while hiring an independent contractor requires no
such duties. Likewise, an employee might be entitled to benefits
such as pensions, insurance, sick leave, and vacation pay
while an independent contractor would have no such expectations.
How do you determine whether a worker is an employee or an
independent contractor?
In answering this question, our courts focus on the relationship
between the worker and the business, generally, and issues
of control and independence, in particular. Even these issues
get broken down into narrower inquiries relating to behavioral
control, financial control, and the type of relationship the
parties have.
Behavioral control refers to the when, where, and how of working.
A court is more likely to find an employer-employee relationship
when it finds that the employer controls factors such as:
what tools or equipment will be used, what workers are hired
to assist with the work, where supplies or services are purchased,
who will perform specific tasks, and in what sequence the
work will be done. Training a worker to perform services in
a particular manner also indicates an employer-employee relationship.
Financial control entails the right to make decisions on the
business aspects of a job. Employees are more likely than
independent contractors to have expenses reimbursed and are
less likely to have a significant investment in facilities
used in the work. Employees have less freedom to seek out
personal business opportunities. Guaranteed payment of a regular
wage for a specified time period is usually a sign of employee
status, while only an independent contractor will be in the
position to realize a profit or a loss.
Other aspects of the worker's relationship with a business
can also help to separate employees from independent contractors.
Of course, how the parties themselves describe the relationship
in any written contracts carries some weight. Employees are
more likely to receive benefits like insurance, a pension
plan, vacation pay, and sick leave. Hiring a worker with an
expectation of carrying on a relationship indefinitely, instead
of for a specific project, is evidence of an employer-employee
relationship. If a worker's services go to the heart of the
business's activity, as opposed to being at the periphery
of the business, it is more likely that the arrangement will
have the kind of direction and control that characterize how
employers and employees operate.
What the parties call themselves is a factor, but courts are
not bound by such labels if the facts point to a different
conclusion. The substance of a relationship is most important
when determining whether a worker is an employee or an independent
contractor.
WEBSITES AND JURISDICTION
Before a nonresident person or business entity can be sued
in a given state, the defendant must have taken some action
that indicates a submission to the authority of that state's
courts. Traditionally, this has meant "minimum contacts" with
the state. The laws that set these ground rules are called
"long-arm statutes," a term that describes the reach of the
courts into other states. The term, like the body of court
decisions on the subject, may need modernizing in the age
of the Internet.
The issue of long-arm jurisdiction has been adapted previously
to technological advances in business, and courts again are
setting new standards for its use when a plaintiff attempts
to bring an out-of-state defendant into court on the basis
of the defendant's website activity. These cases fall at various
places along a spectrum. At one end are "passive" websites,
which are akin to advertisements in national magazines or
newspapers. They allow no real interaction between a business
and potential customers. By themselves, passive websites will
not subject their creators to jurisdiction wherever the site
can be seen.
Midway along the spectrum are websites that allow some interaction
by permitting the exchange of information between the site
owner and users in another state but where the interaction
falls short of transacting business. In such circumstances,
the nature and level of information exchange will govern the
jurisdiction issue.
For example, a New York bank was allowed to sue a competitor
based in another state for trademark infringement in a New
York court. The defendant's website allowed customers in any
state to apply for loans online. Customers also could "chat"
online with a representative or send e-mailed questions to
which they would get a response within an hour. It was ruled
that this Internet commercial activity brought the defendant
within the jurisdiction of New York. However, while this online
activity was both significant and clearly commercial in nature,
there was some doubt as to whether customers actually could
complete transactions online. In a case at the opposite end
of the spectrum from passive websites, a Texas eyewear company
was permitted to sue an out-of-state company in Texas because
the defendant was effectively carrying on business in Texas
by means of its website. This decision was clear-cut because
users of the defendant's website could purchase sunglasses
on the website with order forms containing credit card and
shipping information. The outcome was not affected by the
fact that the computers hosting the defendant's website were
not located in Texas.
Businesses with websites can limit their susceptibility to
the jurisdictional reach of courts in other states by: (1)
using a "clickwrap agreement" in which website customers agree
that any litigation will occur in the courts of a designated
state; (2) including a disclaimer that the company will not
sell its products to customers in a particular state or states;
or (3) disabling a website so that it will not handle orders
or shipments for such states.
ESTATE PLANNING
New Rules for IRA Withdrawals
New rules have been adopted as to the calculation of mandatory
withdrawals from an Individual Retirement Account (IRA). The
general rules are still in effect that funds deposited in
an IRA are tax deferred until withdrawals are made and that
such withdrawals must begin by April 1 of the year following
the IRA owner's attainment of age 70 1/2. The changes that
have been implemented allow the owner greater flexibility
and control over the rate of withdrawal from the IRA, resulting
in greater tax deferral. The primary change is that the beneficiary
upon whose life expectancy the amount of annual distributions
will be based need no longer be designated as of the date
on which distributions must begin (April 1 of the year following
the owner's attainment of age 70 1/2). Under the old rules,
the amount of each year's distribution would be based on the
joint life expectancies of the owner and the beneficiary named
as of the required beginning date, and, after the owner's
death, would be based on that beneficiary's life expectancy.
Even if the owner had later named a younger beneficiary, that
beneficiary's longer life expectancy would not affect the
distribution calculation. Under the new rules, the owner need
not choose a beneficiary at age 70 1/2.
The amounts of minimum withdrawals that must be made each
year while the owner is still alive are based on a single
schedule of life expectancies that will apply to nearly everyone.
The new schedule, known as the "Uniform Table," is based on
the joint life expectancies of the owner and a designated
beneficiary who is 10 years younger than the owner. An exception
to the use of the table applies if the owner's spouse is the
sole designated beneficiary. In that case, if the spouse is
more than 10 years younger than the owner, the minimum amount
that must be withdrawn is based on the joint life expectancies
of the owner and the spouse. Thus, this exception is to the
owner's advantage because it applies only if the required
distribution will be less than that called for by the table.
After the IRA owner dies, the minimum withdrawals are based
on the life expectancy of the oldest named beneficiary as
of December 31 of the year following the owner's death. This
means that an IRA owner can replace a beneficiary with a younger
one and the amount of withdrawals that must be made after
the owner's death will be based on the younger beneficiary's
life expectancy.
Even though the pressure will now be off in the sense that
there is no age 70 1/2 deadline for designating a beneficiary,
the IRA owner still needs to make that decision, or possibly
alter a prior decision, and any such step should be made only
after consultation with a qualified advisor.
TAX TREATMENT OF VACATION HOMES
Special tax rules apply to income and expenses for a vacation
home that is sometimes used by the owner and sometimes rented
to others. The tax treatment depends on the extent to which
it is used for personal reasons. If the owner does not put
the home to any personal use, all of its income is included
on the owner's return and all expenses associated with the
home are deductible. For a home that has some personal use,
but not enough to reach a threshold set by the "de minimis
personal use test," all rental income is taxable and the owner
allocates expenses as either personal or rental. In either
case, deductible rental expenses can exceed gross rental income,
leading to a loss.
Under the de minimis personal use test, a dwelling is considered
a "residence" during the tax year if it is used for personal
purposes more than the greater of 14 days or 10% of the total
days it is rented to others at a fair rental price. If personal
use meets this test and the owner has a net loss in operating
the home, the deduction for rental expenses is limited to
the amount of rental income for the year. A fair rental price
is what an unrelated person would be willing to pay, not a
price that is substantially less than that charged for similar
properties.
The counterpart to the de minimis personal use test is the
de minimis rental use test, which requires that the home be
rented out a minimum number of days before rental expenses
can be deducted. If the owner uses the unit as a home and
rents it out for fewer than 15 days in a year, the owner cannot
include any of the rent as income nor deduct any of the rental
expenses.
Rental income from a vacation home can take forms other than
a rental check. Income may also include payments from a tenant
for canceling a lease, the fair market value of any property
or services received in lieu of rent, and payments made by
a tenant under a rental agreement giving the tenant the right
to buy the property. On the expenses side of the ledger, typical
deductible items include: repairs (but not improvements, which
are recovered through depreciation), insurance premiums, mortgage
interest, charges for utility services, and travel expenses
incurred to collect rent or manage the property.
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