Lawyer's Toolbox To Build A Stronger Legal Foundation

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The New Karate Kid...TARP On, TARP Off: EESA Section By Section Analysis

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May The Enforcement Be With You: Copyright Licensing

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The New Karate Kid...TARP On, TARP Off: EESA Section By Section Analysis

When Mr. Miyagi gave Daniel the chores of waxing his cars, painting his fence and sanding his floors in Karate Kid, Daniel did so grudgingly, not realizing that with every paint-stroke, sand-stroke and wax-on/wax-off motion, he was learning karate. The realization only came later when he was ready to quit Mr. Miyagi's seemingly inept teaching methods, and Mr. Miyagi was forced to demonstrate how waxing cars was karate. Toolbox thinks the experience with the Emergency Economic Stabilization Act of 2008 (EESA) and its now infamous Troubled Asset Relief Program (TARP) are analogous in many respects. Treasury Secretary Paulson and Fed Chair Ben Bernanke keep imploring us to let their credit-thawing mechanism take hold, even as the program keeps changing (TARP On, TARP Off) but the public can't see the impact. Of course, if people followed the TED Spread (as readers of sister publication Pocket MBA do), they would know that the thaw is underway, even if at a glacial pace. For lawyers, on the other hand, the increasing number of companies in seemingly disparate industries trying to make a play for TARP dollars by finding the part of themselves that qualifies as a "financial institution" means more lawyers need to understand the thawing agents.

For those of you who find yourself in need of an E-Z path to EESA, Toolbox offers Financial Markets in Crisis: Section-By-Section Analysis of the Emergency Economic Stabilization Act of 2008, submitted to us by K. Susan Grafton of Gibson, Dunn & Crutcher LLP. Toolbox doesn't have to elaborate on what you'll find here, but it does present the information in terms of what is most important to know. This is a client-focused document, so you don't have to wade through any legalese. It offers a summary of a section and follows up with analysis. Before anything else, the authors focus on the all important definition of "financial institution" and troubled assets, from which all else in EESA flows. So what does financial institution mean? Why, it's "any institution including, but not limited to, any bank, savings association, credit union, security broker or dealer, or insurance company which is organized and regulated under United States law or the law of the states or territories, and which has significant operations in the United States." (Toolbox emphasis). And the authors are on this like wax on a brand new Chevy because the way it is "worded, there are technically no limits on what constitutes a 'financial institution' other than that it has to be an 'institution' and cannot be a central bank or an institution owned by a foreign government." So why not GM, Ford and Chrysler? Toolbox hopes the government realizes that if the Big Three go under, nobody will ever learn karate again.

Financial Markets in Crisis: Section-By-Section Analysis of the Emergency Economic Stabilization Act of 2008 — Download

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May The Enforcement Be With You: Copyright Licensing

Ordinarily, Toolbox would send you off for the holiday break with some lofty prose about what a great year it's been, and so on. But who's kidding who? To paraphrase Frank Sinatra, "When Toolbox was six, it was a very strange year." The price of oil climbed so high that people spent so much of their money buying gas that when the price finally fell, they had no money left to buy gas. The Cubs made the playoffs as favorites to win...and still lost; Yankee Stadium saw its last game. And of course, subprime, bailouts and market crashes, oh my. But 2008 wasn't all bad. The election of Barack Obama is a milestone whether you voted for him or not. Shea Stadium saw its last game—major positive. And Toolbox finally found a YouTube video that is clever enough to link to, doesn't violate any copyrights and exemplifies the new entertainment Toolbox spouted about without demonstrating in issues 28 and 42. (Here's a hint—it's a user-submitted music video though not user-authored or sung, i.e. by some kid, and the authors and performers of the music and lyrics, an a cappella comedy group called Moosebutter that doesn't appear visually in the video, is relishing, even advertising, that its work has been "swiped" and viewed nearly three million times.) Huzzah, the new paradigm works! So to close the year, Toolbox has a holiday, pop-culture video treat. But first, a long time ago in a copyright regime that seems far, far away....

If Toolbox had had access to Copyright Licensing Fundamentals, by Cydney A. Tune (Pillsbury Winthrop Shaw Pittman LLP), before this year, this newsletter might have been a veritable oasis for reproduced materials from Web 2.0, and you might even have found this newsletter spread more far and wide in the world. This is your A-to-Z on the increasingly valuable copyright license. Once the ugly step-sister of IP law,
"[c]ompanies...are licensing to third parties technology and other types of copyrighted works that were originally developed for internal use, in order to monetize the rights that they own." Now, licensing and cross licensing deals "establish new streams of revenue," and "[a]s a result, the number of licensing transactions is growing exponentially and attorneys are being asked to assist with copyright licenses more frequently than ever before." So let Ms. Tune help you get in on the party for 2009 and beyond, as she reviews basic principles, exclusivity, non-exclusivity and sublicensing, joint works, recordation and enforcement, along with specific license provisions including the right to reproduce. Now, before Toolbox signs off for 2008, here's that music-video treat, sans copyright or license infringement. Happy New Year. Now, release your inner nerd and may the enforcement be with you...

Copyright Licensing Fundamentals
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