Why a Will?

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  • Last Will and Testament – A document by which a person directs his or his estate to distributed upon death.

Most people do not have a high level of interaction with the courts in their lifetime. Perhaps that’s why so few have set up a will. Incredibly, according to the statistics presented by Forbes magazine in 2014, more than half of Americans between ages 55 and 64 don’t have wills.These figures get more dismal as the age bracket examined becomes younger.

Many people think of wills as merely dividing up their money and land. As such, they don’t imagine they’ll need a will if they aren’t leaving behind six-figure bank accounts and multiple vacation homes. However, this notion is misguided.

A last will and testament is, generally, an individual’s last chance to give legally binding instructions for the disposition of his or her assets after death. If someone dies intestate (without a will) in the State of Washington, the state will make the decision regarding division of the deceased person’s property. Broadly speaking, the law requires that, in intestate estates, certain percentages of assets go to next of kin. (For example, 50% to the deceased person’s spouse and 50% to his or her children in equal shares). The laws do consider whether property items are community or separate property, but otherwise, no discretion is allowed.

If something unexpected happens, a will ensures that necessary funds go to those who require them. A comprehensive and well-crafted will can contain more than general provisions for your loved ones and their futures. Making a list in your will of items that have sentimental value to family members could avoid a fierce and expensive legal contest later. For example, Dr. Martin Luther King Jr.’s family settled the question of who had the rights to his Nobel Prize and personal travel bible in August 2016. As you may recall, he died in April 1968.

In very rare cases in which no will is found, and no heirs are found, the decedent’s assets may escheat to the State of Washington. This means the state will claim the assets for itself. Most likely, no individual would intentionally leave all of his or her property to the state.

Be aware that, during probate estate administration, debts must be considered. It is very important to consider how any debt will affect the calculations in setting up a will. Debts take precedent over the Decedent’s wishes in his or her will, meaning that generally the debts will be paid off first. The State of Washington lists, in order of priority, the payment of debts during a probate estate administration. [RCW 11.76.110]. For example, any taxes owed to American or foreign governments must be paid before any of the heirs’ claims will be paid. There are some exceptions of course.

It is absolutely critical that your last will and testament is drafted carefully and comprehensively, in order to gain the benefits of having such a document.Although this website will provide some basic information regarding a will and its suggested contents, use of this website is not a substitute for a lawyer; and of course, we do not represent you as your lawyer. Your issues and concerns are unique to you and should be considered carefully. If you have any questions, please consult the services of an attorney.

FCC’s Privacy regulation for Internet Service Providers Repealed

On March 28th, 2017, the House of Representatives repealed a Federal Communication Commission (FCC) regulation that would have required internet service providers (ISPs) to receive consumer consent before sharing their personal information (such as browsing histories, app usage, etc.) with third parties. While the implementation of some parts of the broader regulation around data security had already been suspended by the FCC before the vote, the restrictions on sharing personal information were to become effective in December 2017. Thus, though the repeal does not change much for consumer privacy from a practical standpoint, it does reverse the progress made under the Obama administration towards protecting consumer privacy.

The FCC chairman, Ajith Pai, has indicated that he is interested turning over the jurisdiction over ISPs to the Federal Trade Commission (FTC) because of its extensive history of regulating privacy practices. However, FTC’s authority to regulate privacy practices of broadband mobile providers such as AT&T was restricted by the ninth circuit in FTC v. AT&T Mobility in 2016, which held that “common carriers” are exempt from FTC’s regulation under Section 5 of the FTC Act (which prohibits “unfair and deceptive trade practices”) even when the act in question (data throttling, in this case) is not related its common carrier function. In order to turn over jurisdiction of ISPs to FTC, they would have to be re-classified to non-common carrier status, which would likely endanger the net neutrality rules implemented by the FCC.

In the absence of FCC or FTC regulation of ISPs, the privacy practices of these companies will continue to be regulated through various state consumer protection laws as implemented by the state attorneys’ general. Unfortunately, this means that there will be a patchwork of regulations and lack of clarity on the security and privacy standards for ISPs to follow.

Legal Issues for Mobile Applications

pexels-photo-261706.jpegMobile application (App) development is progressively becoming one of the largest and quickest revenue generators for small and start-up technology companies. A new report from MarksandMarkets pegs the mobile App revenue growth at $25 billion by 2015 (up from approx. $6.8 billion in 2010). It is estimated that about 50 million Apps will be downloaded by 2012.

However, given the recent spate of lawsuits and consumer complaints, legal protection and compliance are becoming ever more important issues for mobile application development companies. Though the laws governing Apps vary widely depending upon the consumer base, nature of content, and the business model utilized for developing the App, it is important to consider at least the following aspects of App development and marketing:

Intellectual Property Right (IPR) in the App Software

The IPR in the App software is a copyright that its author enjoys the moment he or she writes the code. The ownership of such copyright might be complicated if the App development has been outsourced to a vendor, achieved through a joint effort, or derived from an open source software (OSS). Where all or part of the development of the App has been outsourced, the vendor agreement should ensure that the party financing the App development has acquired all IPRs to the software through a properly drafted “work for hire” clause. In addition, it is important to bind the vendor with a non-disclosure agreement to ensure strict confidentiality while your App is being developed.

When an App is developed through a partnership, each company owns the IPR only over the piece developed by it, in the absence of an agreement to the contrary. If each party involved in the development wants the ability to further exploit the App for commercial and non-commercial purposes, then the parties should execute an agreement of joint ownership of the App wherein which each party will be required to account to the other of the financial benefit derived from its use of the App.

A number of Apps today use open source software (according to a recent survey by Open Source, OSS is used in 88% of the Android phones and 41%of the IOS phones). IPR and end user licensing require special consideration in these Apps because the OSS licenses (GPL, LGPL, or Apache) have specific requirements for attribution, distribution, and non-discrimination with respect to the platform. Further, a single app might be developed using a combination of OSSs, each governed by a different license. A legally compliant launch of such an App requires (i) identifying the different components on the App software, the OSS license they are based on, and the compliance requirements for each license, (ii) drafting a terms of use statement that complies with all the required OSS license requirements, and (iii) identifying those components of the App software over which the developer can exert an exclusive IPR.

Intellectual Property Right in the Content

The App might use (i.e. display, reproduce, publish, modify, or make a derivative work of, etc.) copyrighted content such as images, videos, and sound recordings of others. Developers need to procure “rights clearance” from copyright owners in order to be protected against infringement claims. Clearance may exist for certain uses, such as in-store, but it is important to receive permission for use where such rights have not already been licensed.

Trademark issues might also arise if the App or its features are similar to a prior registered or otherwise recognized trademark. Trademark is a branding tool, and so the true test of infringement is whether the use of another’s trademark confuses the end user regarding the origin of the App. Thus, an App could infringe another trademark in a number of ways, including (i) if the name of the App is similar to an existing trademark, (ii) if the look, feel, and layout of you App is similar to that of a recognized mark, or (iii) if an existing trademark is used in the marketing or description of the App such that the end user is likely to be confused as to the source of the App. In order to avoid trademark infringement issues, the developer should identify the use of any prior trademarks in the App and inform the end user that the App is not sourced or endorsed by that trademark owner.

If the App allows for user contribution, then it is important to protect against vicarious liability from users who post infringing content. The Digital Millennium Copyright Act might help avoid such liability if the developer follows the requirements of its safe harbor clause, including (i) immediately removing the infringing material when a complaint is received or the App owner becomes aware of it, (ii) disabling repeat infringers from using the App, (iii) not receiving any direct financial benefit from the infringing activity, and (iv) adopting reasonable technical measures to avoid infringement.

Privacy and Data Collection Issues

As is evident from recent lawsuits against Apple for breach of privacy, data storage and privacy are becoming real concerns for end users. In Apple’s case specifically, the problem was that it was storing location based data of end users in an unencrypted form and using it for commercial purposes .While a monetary damage still needs to be established, failure to address end user’s privacy concerns could negatively impact the App’s consumer support and sale.

These concerns regarding privacy and data protection can be addressed by drafting effective terms of use and privacy policy statements that are reflective of the developer’s consumer base and privacy practices. The terms of use and privacy statements should at a minimum include, (i) what information is collected, (ii) how is it stored (iii) how is it used by the developer (iv) whether the information is shared with third parties, (v) how can the user opt out providing such information, and (vi) contact information for end user complaints of the user data. If the App does collect and share personal information, then the developer should get consent from the end user for doing so.

Additional considerations will arise if the App collects financial, personal, or health data, is targeted towards children, or further distributes this data to third parties, since specific laws govern the use of such information. For example, if the App is a game targeted towards children 13 and younger, then the App will have to comply with Children’s Online Privacy Protection Act. In addition, a number of states have their own regulations around privacy and data collection activities.

Jurisdiction

While the advice above has been provided only in reference to U.S. law, the App developer will need to consult and comply with laws in other countries where the App is being distributed. Consumer protection, privacy, and data protection laws in the U.S. differ widely from those in Europe, China, India, and other nations that might have heightened restrictions on such activity. If the App is being distributed in country apart from U.S., it is highly advisable to consult with an attorney or other expert in mobile and consumer laws of those countries.