Jim Dolan's Lawsuit Against Cityfile Highlights The Need For Stronger Anti-SLAPP Laws

from the silencing-dissent dept

The Citizen Media Law Project has yet another story of bogus lawsuits being used to silence something someone doesn't want written about them. In this case, it involved Jim Dolan, known (but not particularly liked) to New Yorkers as the owner of Cablevision, the Knicks and Madison Square Garden. More recently, Cablevision bought the newspaper Newsday -- so you might think that Dolan would be a little more aware of why it's bad to sue a news publication claiming defamation over a clearly speculative piece. And, yet, sue he did. Dolan sued the blog Cityfile for posting a piece about rumors that Dolan was considering getting rid of the famous "Christmas Spectacular" involving the Rockettes at Radio City Music Hall in New York. As Arthur Bright points out, the original post doesn't seem all that different than speculative articles published all the time in pretty much every media outlet.

Unfortunately, facing a protracted legal fight, Cityfile agreed to settle and "retract" the story. Bright notes that this is silly, and any decent lawyer should have been able to get the lawsuit tossed on First Amendment grounds. The problem is the time and resources needed to fight such a thing.

Bright then points out how this highlights the need for stronger anti-SLAPP laws in New York. Anti-SLAPP laws let people fight back against such bogus lawsuits, whose purpose is only to silence speech (SLAPP stands for Strategic Lawsuit Against Public Participation). The problem, however, is that right now anti-SLAPP laws are at the state level, and only a few states have really strong ones. New York is not one of them. While Bright says this is evidence of why NY should strengthen its anti-SLAPP laws, a better solution might be a strong federal anti-SLAPP law, that shows a strong support for freedom of speech, and helps prevent bogus lawsuits whose only purpose is to allow those with more money to silence speech they dislike.

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Cuomo Uses Craigslist To Bust Prostitution Ring... Still Blaming Craigslist

from the think-about-that-for-a-second... dept

Following Craigslist's big announcement last week on the changes to how it handles "adult" ads, Andrew Cuomo angrily denounced the changes, claiming that several weeks before, "we informed Craigslist of an impending criminal case that implicated its website." It seems the details of that case have now become clear, as a prostitution ring that solely worked via Craigslist was busted by Cuomo. Yet, rather than recognize that the information on Craigslist allowed them to track down and arrest this crew, Cuomo is still lashing out at the site:

"Unless craigslist gets serious about putting real protections in place, it will continued to be an environment where criminal operations thrive with impunity,"

Does Andrew Cuomo even realize what he's saying? He's saying that they'll operate with impunity right after he showed that's not true by arresting them. Given the fact that Craigslist cooperates with the police (and one assumes it did in this case as well, given that Cuomo approached them about it "weeks ago"), then Craigslist actually helped the police catch these criminals. Does Cuomo blame AT&T after AT&T helps him get a wireptap in a criminal investigation? After all, AT&T provided the phone system, which allowed the criminal operations to thrive with impunity.

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Andrew Cuomo Angry That Craigslist Stole His Photo Op

from the wow dept

This morning we posted the news about Craigslist giving in to angry Attorneys General who were misguided in their anger. In it, we discussed how this was a larger version of NY AG Andrew Cuomo's tactics to force internet companies to censor, despite no legal basis. However, it looks like Andrew Cuomo is pissed that others have taken his tactics and didn't give him a chance to be involved. Thomas O'Toole alerts us to this stunning statement from Cuomo who appears to be quite angry that this decision was made without him present:

"Several weeks ago, we informed Craigslist of an impending criminal case that implicated its website. Rather than work with this office to prevent further abuses, in the middle of the night, Craigslist took unilateral action which we suspect will prove to be half-baked."

O'Toole's summary is dead on: "Curses, you stole my photo op!" So when we wrote the original post wondering how soon it would be before AGs were upset with the new plan, we knew something like this would happen eventually. We just didn't think it would be a matter of hours.

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Train Operators Around The World Stopping Others From Helping Riders... Due To Intellectual Property

from the how-dare-you-help-people!! dept

What is it about folks who operate train lines that make them so confused when it comes to intellectual property? They seem to be focused on harming their own businesses in an effort to "protect" intellectual property. If enforcing your intellectual property makes you worse off, then why are you enforcing it? Just today, we received two separate stories of incredibly backwards thinking from those who operate train-lines -- which makes you really wonder why some people get so focused on protecting intellectual property that they lose sight of the fact that it's harming their business.

We've already talked about those who run trains in Germany and Australia cracking down on people creating their own iPhone train schedule apps, claiming they violated intellectual property rights of the train operators. This makes very little sense for a variety of reasons. First, it is still quite ridiculous that any sort of factual information can be covered by copyright -- but in Europe such "collections" of information can be covered by the database copyrights -- the idea that if you put factual information into a "database" that database then deserves copyright protection. Europe has this, while the US does not -- and studies have shown that contrary to what copyright supports insist, this increased right has actually hindered the database industry in Europe... but that hasn't made the law go away.

But, of course, even more idiotic than just the question of copyrighting facts, is the simple point that these apps make it easier for people to ride the trains, which should be exactly what the train operators are encouraging. Thanks to the mantra of certain copyright supporters that "free is bad," some folks seem unable to think out more than a single step. The fact is, that if people can make a great train schedule app that makes it easier to take the train, then that means more people will take the train, which is where the real money is for train operators. But, of course, the folks who only see one step out, think "wait, we should be making money on that data!" even if it means fewer people take the train, and the net benefit is less.

The latest to make that decision is the UK's National Rail Enquiries, who forced the creators of the MyRail Lite app to shut down (thanks to Donald for sending this in). MyRail Lite was a free iPhone app. NRE is offering its own app... for £4.99. So in the short-term rush to try to score a bit of money from a small group of people, NRE is making the overall rail system a lot more complex for the majority of people. Short-term thinking at its finest.

Unfortunately, the author of the article, Rory Cellan-Jones, starts out by agreeing that this is dumb, but then seems to change his mind, after reading the silly James DeLong article about newspapers where he (in typical DeLong fashion) insists that the use of "free" is what destroyed newspapers. The arguments are easy to debunk, but Cellan-Jones seems to have fallen for them. But it's easy to see how wrong it is in this case: the business NRE is transportation. If it gets people from point A to point B more efficiently, it will be able to make more money charging for that service. A free app that makes the process more efficient helps the bottom line. Trying to scrape up a bit of extra cash at the front end, while making the process more inefficient for more people is incredibly short-sighted.

But, that isn't the most ridiculous story we heard today about trains and intellectual property. Lucretious sends in the news that a group of four very nice women in New York City who have been voluntarily working to make public transportation in NYC more pleasant have been ordered to stop by the Metropolitan Transportation Authority. The women have set up a website, MTAService.org where they provide information on how to make your public transit in NY better. It's run by four women, who also ride the subways regularly (wearing their own made up uniforms) trying to help provide better service -- helping people find where they need to go, or helping mothers with strollers, for example.

But, of course, the MTA has sent them a cease-and-desist, demanding they pull down the information. You can see the trademark worries -- even though the website clearly states that the MTA Service Specialists (as they call themselves) are in no way affiliated with the MTA (they note "unfortunately.") But, rather than the MTA doing the smart thing, and seeing if they can actually associate themselves with these helpful women, the MTA just wants to shut them down. This is short-term thinking again. Sure, there almost certainly is a valid trademark claim here -- but if someone actually took the time to sit back and look at the facts of the situation, they would realize that a better response would be to see if they could sign these women up officially to help improve service on the subway. As the women note, they're just trying to improve the MTA's service, without costing the city any money at all.

Once again... we see how this aggressive believe in "we must protect our IP!" is actually being used to hinder service improvements, rather than help them.

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Amazon's Suit Over NY Sales Tax Gets Tossed Out By Judge

from the closer-to-the-beginning-than-the-end dept

A judge in New York has tossed out suits from Amazon and Overstock which sought to overturn a state law there compelling them to collect sales tax on purchases made by New York internet users. The law was put into place last year and and immediately raised some eyebrows, as federal law allows states to collect local tax on internet purchases only if the retailer has a physical presence in that state. What set New York's law apart was that it considered internet retailers' affiliates, companies or even individuals that sell through the sites, to constitute a physical presence, giving the state the right to collect sales tax. It's highly unlikely that this is the end of the story with this law -- the suits will probably continue in another court, and it may become more common for internet retailers to ditch their New York-based affiliates until things get sorted out, or if the law is upheld. That's one problematic outcome of the law that's harmful to the people of New York; another issue is the dangerous precedent this law could set by allowing every locality to tax a wide array of internet purchases made by their residents, creating a morass of taxing jurisdictions for internet retailers to navigate.

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

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New York The Latest To Propose Taxing iTunes Downloads

from the for-no-reason-at-all dept

Earlier this year, some politicians in California, which is struggling with massive budgetary problems, proposed adding a tax to iTunes downloads. Now, Governor David Paterson in New York is proposing the same thing. There's no functional reason for this, other than the fact that the state desperately needs money, and so it's trying to add taxes to just about anything it can find. Of course, back in the old days, the point of a sales tax like that was to contribute to gov't-funded infrastructure (roads and such) that allowed folks to go and buy something. There's no such rationale for taxing internet downloads. It's a blatant money grab and Paterson seems to have no problem admitting that.

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Cop Caught Slamming Cyclist To The Ground On YouTube Indicted

from the fighting-back dept

Over the summer, you may have seen the video that got passed around quite a bit of a NYC police officer going out of his way to slam a Critical Mass cyclist to the ground. As you may have heard, the officer wrote up a report claiming that the cyclist ignored his commands to stop and tried to steer his bike into the him. From the video, that's obviously false, though the cyclist ended up having to spend a day in jail based on the report:

The good news is that the officer, Patrick Pogan, has now been indicted and charged both with a misdemeanor assault and felony counts for falsifying his report. Obviously, none of this would have transpired if it weren't for the tourist filming what happened and then putting the video up on YouTube. We talk about abuses of power via technology quite often, but it's good to see an abuse of power stopped thanks to technology as well.

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How A School Board In Wisconsin (And The NYC Subway System) Became Accidental Hedge Funds

from the the-obfuscation-of-risk dept

We've talked in the past about how one of the causes of the financial crisis was that many banks on Wall Street stopped acting like banks and started acting like hedge funds -- despite not really knowing how to do that. That is, they took on much greater risks and higher leverage, without having much of an understanding of how to really hedge that risk. That was fine when all was going well, but when the bubble burst, it started impacting everyone.

Now, in a combined effort between NPR's Planet Money (I know I've said this, but I'll say it again: if you're not listening to this every day, you're missing out, big time) and the NY Times, reports are coming out about how it went well beyond banks turning into hedge funds, to all sorts of other organizations as well. The scary example being described in the first article in this series is how a Wisconsin school board and the NYC subway system, both effectively became hedge funds, lending money out to various banks in exchange for CDOs (collateralized debt obligations). What a CDO is, effectively, is the mashing together of a variety of different debt instruments (loans) that pay out some sort of return. So, you could basically buy some of the return on a whole mess of loans, packaged in all different ways (some amazingly creatively).

If all of those debt instruments that you're buying into keep on paying, you're in good shape. If, however, there are defaults, you can be in an awful lot of trouble. However, while everything was going great, defaults weren't an issue and the folks sold on these CDOs often had no idea how risky they really were. In the article above, for example, the guy who sold the Wisconsin school district on investing $200 million of its pension money in CDOs had only taken a two hour course on them, and greatly downplayed the risks.

And, of course, to make matters even worse, in many cases, the actual risks of such CDOs were hidden through some games, and made worse by either clueless or complicit ratings agencies which rated seriously high risk CDOs as being extremely safe bets. To see a rather graphic (and easily understandable) example of this, I recommend the following Paddy Hirsch video comparing CDOs to pyramids of champagne glasses:

The really scary part was that, effectively, you had numerous less than fully sophisticated investors, dumping hundreds of millions, if not billions, of dollars into incredibly complex investment vehicles that they were being falsely told were extremely safe, when the facts are that they were highly risky. Many pension funds and the like allocate a certain small percentage of their investments into high risk vehicles -- but the financial crisis is being caused in part by the realization that a much, much, much larger percentage of their investments actually turned out to be in seriously high risk vehicles, many of which have now defaulted.

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NewEgg Tells NY Tax Collectors To Take A Hike

from the take-that dept

Earlier this year, we wrote about how NY state had passed a highly questionable law designed to force e-commerce retailers to collect sales tax in the state. As you hopefully know, retailers are only supposed to collect sales tax in states where they have a physical presence. The reasoning for this is pretty straightforward. The taxes are designed to help provide core infrastructure services for those retailers (roads, water, etc.). Without a physical presence in the state, the retailers aren't making use of those services, so it doesn't seem right to tax them for it. The NY state law was sneaky in that it changed the definition needed to establish a "physical presence" to include anyone who acted as an affiliate of the retailer. Most e-commerce sites have affiliate programs that allow others to get a kickback on sales for driving those sales. Affiliates are effectively advertisers, driving traffic to an e-commerce site. It's quite a stretch to suggest they represent a physical presence for the company. But, NY politicians did it because they wanted to get more cash out of Amazon.

Different online retailers have reacted in different ways. Both Amazon and Overstock sued over the law -- and Overstock even banned NY affiliates while this law is in place. Online tech retailer NewEgg started collecting the tax, but has changed its mind. It sent a letter to customers saying that it's decided not to collect the tax. There isn't much more of an explanation, but it sounds like it's asking New York to sue it if it wants to get the tax at all:

As a result of recent changes in New York State tax law requiring certain out-of-state retailers to collect and remit sales taxes to the State of New York, we began collecting applicable sales tax for all orders shipped to New York addresses starting June 1, 2008.

After careful review and consideration, we are pleased to inform you that we have stopped collecting New York sales tax, effective August 21, 2008. This decision was driven by your direct and candid feedback and our continued commitment to you as our valued customers.

Your move, New York.

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NY State Passes Video Game Labelling Law; About To Waste Taxpayer Money Defending It

from the definition-of-insanity dept

About a dozen states have passed laws either requiring video games be labeled for content or banning the sale of certain video games to children. Every single time this has happened, the law has been struck down as unconstitutional. And, every single time, the same arguments are shown to politicians, explaining how such a ban is a clear violation of the First Amendment. Politicians know this. But they can't resist passing such laws, because it gets them headlines about how they're "protecting the children," even if the only real result is having to waste taxpayer money defending the law in court, where they always lose.

The latest to join the fray? New York State. NY has been working on such a bill for a while, and Gov. Patterson has signed it into law. Lawsuits are already being filed against it, and New York will almost certainly lose. Once again, we can't resist repeating the quote from Judge Richard Posner in striking down one of these laws:

"Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low ... It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault are aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it."

Yeah, but it does get politicians in the headlines, and who cares about deforming children when the headlines will claim they're protecting them?

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Bronx DA Backs Down After Sending Secret Subpoena To Unearth Anonymous Bloggers & Commenters

from the the-right-to-anonymity dept

Paul Alan Levy the lawyer from Public Citizen who defended the bloggers in this case was kind enough to write in alerting us to another job well done by Public Citizen. In this case, a NYC political blog site called Room 8 had some posts by an anonymous blogger criticizing some actions in the Bronx DA's office and the Bronx Republican Party. Not long after the posts, Room 8 received a subpoena from the DA's office not just demanding the IP address of the anonymous blogger and various anonymous commenters, but also warned them that even disclosing the subpoena could get the folks behind Room 8 in serious trouble. Luckily, Room 8 chose to fight this request, signing up the help of Levy, who convinced the DA's office to drop the subpoena and after Room 8 had to threaten the DA's office with a lawsuit of its own, it dropped the demand that the supboena be kept secret. Room 8 has a full account as well. Public Citizen also has posted links to a bunch of documents from the case.

What's still not clear is what was the purpose of the original subpoena. From the facts presented, it's easier to jump to the conclusion that it was purely political. Someone in the DA's office didn't like being criticized, and used the power of the office to try to squelch that voice (and, in fact, well before this came out, the anonymous blogger in question erased all his posts and disappeared). The folks who run Room 8 tried to determine what the actual issue was, and never received any answers. The whole thing is a bit scary, as it does show how a DA could abuse power to get info on anonymous critics simply by claiming it was a criminal investigation, without disclosing any details, and without letting the bloggers subpoenaed speak about it. Hopefully if other sites are getting bullied in this manner, they'll learn to fight back as well.

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California To Copy NY's Bad Plan Forcing ISPs To Block Sites

from the the-great-firewall-of-america dept

The next time US officials complain about other countries blocking websites and censoring the internet, just point them to the actions of various publicity-seeking US states' Attorneys General. We've already mentioned NY AG Andrew Cuomo's incredibly misguided plan to force ISPs to block certain websites and newsgroups. While officially in the name of stopping child porn (an excellent goal), the plan is open to widespread abuse. First, it targets the ISPs, rather than the actual perpetrators of child porn. Second, it involves a secret list that won't be available for review to make sure it doesn't include perfectly legitimate content. Third, ISPs are already "over-blocking" additional content to avoid getting in trouble -- meaning that plenty of legitimate content is also being blocked. Fourth, those who really want child porn will simply use other methods to find it -- and it will be harder for authorities to track those new sources down.

With all that going against the plan, wouldn't you know that California's AG is claiming that the NY agreement doesn't go far enough. While the NY agreement only covers Verizon, Time Warner and Sprint -- California Attorney General Jerry Brown is saying all ISPs should have to do the same, as well. Unfortunately, it seems like this type of "non-solution" is appealing to politicians who don't understand the actual issues. It makes them look like they're sweeping child porn off the internet, when all they're really doing is blocking legitimate content while making it more difficult to find those actually engaged in child pornography.

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NY Pressures ISPs Into Blocking Child Porn Websites, News Groups

from the good-goal,-bad-approach dept

New York's Attorney General, Andrew Cuomo, has a history of using his position to threaten big companies into agreeing to take responsibility for something that isn't their responsibility. He did it when he got advertisers to pay fines because their ads showed up in adware -- without ever explaining what was actually illegal. And, now he's done it again in getting a bunch of ISPs (Verizon, Sprint and Time Warner) to agree to block a list of websites and newsgroups that are listed as being purveyors of child porn. The ISPs are also giving Cuomo's office over a million dollars, ostensibly to help wipe child porn off the internet. If that's Cuomo's goal, this isn't the best way to do it -- though, it will get him plenty of press coverage for bullying companies into doing something they aren't required to do under law.

In fact, the state of Pennsylvania tried to do pretty much the same thing, back in 2002, but focused on actually passing a law (unlike Cuomo, who just bullied the companies into "agreeing.") And, of course, a federal court tossed out the law as unconstitutional. The goal is certainly noble. Getting rid of child porn would be great -- but having ISPs block access to an assigned list isn't going to do a damn thing towards that goal. The blocked sites will reappear elsewhere. Those who want access, even to the blocked sites, will simply find encrypted tunnels to hide their paths. Basically, this won't do much of anything, other than increase costs for ISPs.

Even worse, it runs a huge risk of starting ISPs down a very slippery slope of being willing to ban access to online content. No one's against that when it's child porn, but who's reviewing the list to make sure it's really child porn? How hard is it to slip a site that someone just doesn't like into the list? Furthermore, once these ISPs have shown that they're willing to block certain sites, then politicians will quickly look to increase that list beyond just child porn to other types of sites that they find objectionable. It sets a dangerous precedent.

Putting the responsibility on the ISPs is the wrong solution (and, honestly, the folks who are pro-net neutrality should be seriously worried about this -- as it's a clear violation of what they say net neutrality is all about). If the content itself is illegal, go after those actually responsible for the content. Not the service providers. Sure they make for easy targets and big headlines (backed up with that hefty cash "settlement" right to Cuomo's office), but they're not the ones responsible.

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Overstock Sues New York Over Questionable Tax Collecting Law

from the and-here's-another-one dept

Back in April, New York state signed into law a very questionable bill that effectively made any affiliates of your service (i.e., anyone advertising your services) considered as representing a "local presence" for your company for tax purposes. The law had no reason for existing other than to try to squeeze extra tax money out of online retailers. Amazon quickly sued over the law and Overstock has now followed suit, filing a lawsuit against the tax law. Overstock, of course, has taken its reaction even further, banning all New York affiliates as long as this law is in place. The effective result of the law, then, is that it actually ends up harming residents of the state while not doing very much to actually increase tax revenue. It seems quite likely that this law will get tossed out, as it seems to go entirely against earlier rulings on what constitutes a physical presence in the state.

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NY State Demands Email Addresses/Usernames Of Sex Offenders

from the grandstanding-to-protect-the-children dept

Chris writes in to let us know about a new law passed in NY State that requires any sex offender to register any email addresses and screennames with the government. Any time a sex offender registers a new name or email address, he needs to alert the state within 10 days. While you can understand the grandstanding reasoning behind this ("protect the children!"), this really does seem fairly pointless. It's similar to a federal proposal, and all it really does is create a huge bureaucracy. Despite what the mainstream media has portrayed, the vast majority of sex offenders are not online stalking people. Most involve people known to the offender (all too often family members). In fact, recent research has shown that the whole "internet threat" thing is totally overblown. This isn't to absolve sex offenders of their crimes -- but to question the reasoning behind this sort of law. Those who are really out to stalk kids online will simply ignore this law -- and all NY State gets is a big bureaucratic mess tracking usernames and emails.

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Overstock Cuts Off NY Affiliates Over NY's Amazon Sales Tax Law

from the nice-work,-New-York dept

Last month we wrote about how New York was changing a law to try to force Amazon to collect and pay sales tax in New York by defining any affiliate in the state as being an Amazon point of presence. This is a clear perversion of the intention of the law that only requires collecting sales tax if the company has a physical presence in the state. While Amazon is now fighting this law in court, others are taking more drastic measures. E-commerce site Overstock.com has declared that it will no longer allow New York affiliates in order to avoid having the state consider it to have a "physical presence" there. This would be an unintended consequence of such a law. In an effort to get e-commerce providers to cough up more in taxes, not only will Overstock not be paying those taxes, it just made life a lot more difficult for thousands of Overstock affiliates in New York.

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New York Wants To Punish Criminals For Incriminating Selves On YouTube

from the if-you-confess,-we-punish-you-more dept

We've been seeing plenty of stories lately that incorrectly place the blame when people film themselves doing something illegal and put that video online. This should be something where politicians and the police should be thrilled. After all, it makes it that much easier for the police to find them, arrest them and convict them of a crime. If people are so stupid to post evidence of their crime in public, then isn't that a good thing? Yet, politicians who incorrectly like to put the blame for the crime on the video of the crime, come up with harebrained proposals like a new one in New York that will make putting a video of yourself committing a violent crime online a felony in itself (above and beyond whatever charges you might face for the violence). Think about that for a second. New York politicians are basically telling people that they'll get charged with even greater crimes if they decide to incriminate themselves by posting evidence online. This makes no sense.

The reasoning behind the bill is that politicians believe people are committing these kinds of crimes for the publicity in the first place. The thinking is that such crimes wouldn't happen at all if they couldn't be put online. However, that's rather meaningless. If someone is going to commit a violent crime -- punish the violence itself. Not the fact that the idiots handed over the evidence as part of a publicity stunt. If the (small number) of idiots who commit violent crimes and post the videos online are getting caught and arrested for the violence itself, shouldn't that act as enough disincentive?

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Amazon Sues NY Over Questionable Tax Collecting Law

from the time-to-prevent-a-mess dept

Recently, Tim highlighted that NY state, in a desperate move to squeeze more tax revenue out of Amazon.com changed the law to require Amazon to collect and pay NY state sales tax on goods shipped to New York. Federal law only requires that companies that have a physical presence in a state collect the sales tax. Amazon doesn't have a physical presence in New York, so New York redefined "physical presence" to include anyone who's a part of an affiliate program. Of course, Amazon affiliates are little more than advertisers of Amazon's goods. As Tim noted, this is effectively saying that any company may suddenly be forced to collect taxes if they just advertise on a website based in a certain state.

In response, Amazon has wasted no time in suing New York State, claiming that the law is unconstitutional, noting that it's "overly broad and vague," while also noting that it's clearly designed to squeeze extra taxes out of one specific company: Amazon.com. It probably doesn't help NY state's defense to hear that state officials even referred to the law as "the Amazon tax."

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New York Tries To Rope Amazon Into Playing Tax Collector

from the bit-of-a-stretch dept

The New York Times reports that the state of New York is demanding that Amazon and other e-tailers begin collecting sales taxes from customers in the state by June 1 or face audits and bills for unpaid taxes. Under federal law, a state can only require a business to collect sales taxes for it if the business has a physical presence in that state. So Amazon collects sales taxes in Washington state, where it has its headquarters, but not in most other states, including New York. But New York has hit upon a novel legal theory: Amazon might not have a physical presence in New York, but many of Amazon's affiliates do, and New York argues that those affiliates constitute a "physical presence" sufficient to require Amazon to collect taxes for the state. It's a novel theory, and one that Amazon will almost certainly challenge in court. It doesn't make a whole lot of sense to me. Amazon's affiliates are essentially selling Amazon advertising space on their websites. They're not employees of Amazon any more than I become an employee of any site that purchases advertising space on my blog. If New York's interpretation is accepted by the courts, it would spawn endless litigation about which types of relationships establish a "physical presence." There's also a good chance Amazon would just cut off New York residents from participating in the affiliates program to save itself the headache of potentially having to comply with thousands of different taxing jurisdictions. Either way, nothing good is going to come from this.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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Marilyn Monroe's Estate Loses Rights To Photos After Fighting To Make Her A New Yorker

from the figure-this-one-out dept

It appears Marilyn Monroe's estate didn't think all the way through its strategy of posthumously moving the famed star to New York. Apparently, her family convinced California tax authorities that Monroe had been a New York resident, in an attempt to avoid paying taxes on the estate in California. Unfortunately for the estate, that would also mean that Marilyn Monroe's publicity rights died with her. As Against Monopoly points out in the latest example of the bizarre effects of intellectual property rules, California allows "rights of publicity" to live on after death -- meaning that images of famous people still need to be licensed. However, New York says your right of publicity dies when you die. So, a court has now ruled that, thanks to Monroe's own estate claiming that she was a New Yorker, there's no longer a right of publicity for Monroe, and photographers who own Monroe photographs shouldn't have to pay her estate (as they've done since her death). This has photographers claiming that the estate has been unfairly demanding licenses for many years. Next time, perhaps Monroe's estate will just pay the taxes it owes. But, in the meantime, we get to see the bizarre impact of rules such as "publicity rights" which have forced photographers to pay to use photographs they took for many years.

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