“Rather than relying on paper-based procedures, this system will leverage 21st century electronic means to obtain basic information about who is traveling to the U.S.without a visa,” said Homeland Security Secretary Michael Chertoff.

“Getting this information in advance enables our front-line personnel to determine whether a visa-free traveler presents a threat, before boarding an aircraft or arriving on our shores. It is a relatively
simple and effective way to strengthen our security, and that of international travelers, while helping to preserve an important program for key allies.”

Visa Waiver applicants will not be able to enter the U.S. without an ESTA beginning January 12th, 2009.

Several questions addressed by the DHS FAQ are

If you would like to read the ESTA FAQ from DHS, you can review it on the CIS website located at www.uscis.gov.

On August 1st, 2008, DHS will begin to accept voluntary applications through the ESTA website located at https://esta.cbp.dhs.gov.

Until ESTA is mandatory for all VWP travelers, ESTA applicants will need to complete an I-94W Form en-route (for presentation at a U.S.Port-of-Entry).

For more information about ESTA, please feel free to contact us at info@visaserve.com.

About Nachman & Associates, P.C.

Nachman & Associates, P.C. provides Global Immigration Law Services for large and small businesses, universities, and health care institutions. Our immigration lawyers and staff members are respected for setting high standards through their day-to-day work with clients throughout the United States and abroad. Our firm provides not only “hard” business immigration legal services, but also “soft” services

to make employee transfers successful, such as: assistance and attendance at the port-of-entry for foreign nationals; step-by-step assistance with consular processing abroad; assistance for HR professionals in connection with the implementation of employment verification programs or Form I-9 audits; assistance for immigrants and their family members with social security cards, driver’s licenses, and other transfer and relocation issues; and on-site seminars and free monthly business immigration E-zines that report on current immigration topics.

Website: http://www.visaserve.com

Nachman & Associates, P.C.
David H. Nachman
Managing Attorney
email: david_nachman@visaserve.com
phone: 201-670-0006 (x100)

Nachman & Associates, P.C.
Gina Giambalvo
Communications Manager
email: gina_giambalvo@visaserve.com
phone: 201-670-0006 (x110)

Introduction: Over the past several years, advances in computer software have brought us time-saving business programs, educational software that teaches basic and sophisticated subjects, graphics programs that have revolutionized the design industry, Internet applications that help connect us with other computer users, and an increasingly complex variety of computer games to entertain us. As the software industry grows, everyone stands to benefit for it enables us to perform tasks with a greater degree of efficiency and accuracy. Compared to literature, music and movies, computer software is a relatively new form of intellectual property. Nevertheless, software is protected under the very same laws.

The copyright infringement of software or software piracy refers to practices which involve the unauthorized copying of computer software. Pirated software hurts everyone—from software developers to retail store owners, and ultimately to all software users. Furthermore, the illegal duplication and distribution of software has a significant impact on the economy.

Dimensions of the problem: Copyright Infringement is extremely common in countries like United States, Mexico, China, Indonesia, Russia, Brazil, Zimbabwe and several other parts of the world[1]. Most countries have copyright laws which apply to software, but the problem seems to lie in its enforcement and differences in legislation for e.g. Software authors suggest that copyright infringement negatively affects the economy by decreasing the profits that allow for further development and growth within the software industry[2].

The U.S. is the country most affected, as they provide about 80% of the world’s software[3]. Software counterfeiting is claimed to be a large problem by some, resulting in a revenue loss of US $11-12 billion, China and Vietnam are the biggest offenders[4]. Furthermore, The Fourth Annual BSA and IDC Global Software Piracy Study revealed that 35% of the software installed in 2006 on personal computers (PCs) worldwide was obtained illegally, amounting to nearly $40 billion in global losses due to software[5]. The rate of copyright infringement of software in the Asia-Pacific region has been estimated at 53% for 2004[6]

Types of copyright infringement of software: It might be surprising to know that one might be unintentionally pirating software thus leading him into a piracy trap. Therefore it is important to educate oneself about the types of copyright infringement of software.

1. Softlifting: Softlifting occurs when a person purchases a single licensed copy of a software program and loads it on several machines, in violation of the terms of the license agreement e.g. “sharing” software with friends and co-workers and installing software on home/laptop computers[7].

2. Counterfeiting: When unauthorized copies of software are duplicated and sold as “legitimate copies” produced or authorized by the legal publisher (typically the counterfeiter will use trademarks to make the product look like legitimate software[8]).

3. Internet Piracy: Internet piracy is the uploading of commercial software (i.e., software that is not freeware or public domain) on to the Internet for anyone to copy or copying commercial software from any of these services[9].

4. CD-R Piracy: CD-R piracy is the illegal copying of software using CD-R recording technology. This form of piracy occurs when a person obtains a copy of a software program and makes a copy or copies and re-distributes them to friends or for re-sale. President Bush in 2005 signed the Family Entertainment and Copyright Act making CD-R Piracy a federal felony[10].

5. Internet Piracy: Internet piracy is the uploading of commercial software (i.e., software that is not freeware or public domain) on to the Internet for anyone to copy or copying commercial software from any of these services. On June 27, 2005, the US Supreme Court issued its ruling in MGM v. Grokster, ruling that the providers of software that designed to enable “file-sharing” of copyrighted works may be held liable for the copyright infringement that takes place using that software[11].

6. Unrestricted client access: Unrestricted client access piracy occurs when a copy of a software program is copied onto an organization’s servers and the organization’s network “clients” are allowed to freely access the software in violation of the terms of the license agreement[12].

7. Hard-disk loading: The US Supreme Court in Mai systems corp. v. Peak computer, Inc[13]. described Hard-disk loading as one that occurs when an individual or company sells computers preloaded with illegal copies of software. Often this is done by the vendor as an incentive to buy certain hardware.

8. OEM Piracy: Some software, known as OEM (original equipment manufacturer) software, is only legally sold with specified hardware. When these programs are copied and sold separately from the hardware, this is a violation of the distribution contract between the vendor and the software publisher[14].

9. Commercial Use of Noncommercial Software: Using educational or other commercial-use-restricted software in violation of the software license is a form of software piracy. Software companies will often market special non-commercial software aimed at a particular audience. For e.g. many software companies sell educational versions of their software to public schools, universities and other educational institutions. However, it should be noted that in the US, the first-sale doctrine Softman v. Adobe[15] and Novell, Inc. v. CPU Distrib., Inc.[16] ruled that software sales are purchases, not licenses, and resale, including unbundling, is lawful regardless of a contractual prohibition. The reasoning in Softman v. Adobe suggests that resale of student licensed versions, provided they are accurately described as such, is also not infringing.

10. Manufacturing Plant Sale of Overruns and ‘Scraps’: Software publishers routinely authorize CD manufacturing plants to produce copies of their software onto CD-ROM so that they can distribute these CD-ROMs to their authorized vendors for resale to the public[17].

Several international treaties and conventions spell out protections that are afforded to software against infringement. The TRIPS provides for extensive protection of software. The WIPO Copyright Treaty of 1996, which is a special agreement to the Berne Convention,[18] requires compliance with Berne. This treaty makes it explicit that computer programs are protected as literary works under The Berne Convention. The Berne members constitute a union that is open to all countries of the world, provided that certain minimum protective requirements are satisfied. And the Universal Copyright Convention (UCC) mandates all UCC member countries to provide protection against software piracy to the extent that the member country’s copyright laws protect software.

The TRIPS standpoint: The TRIPS is the first international Treaty to explicitly include computer programs within the illustrative list of copyrighted works[19]. The TRIPS sets forth three different forms of protection for software: copyright, patent and trade secret regime. TRIPS includes a specific provision in Article 10 that expressly requires member states to protect software, whether in source or object code, as literary works under the Berne Convention. However, the member countries have a right to provide more extensive protection of intellectual property rights within their national legal systems.

Article 27.1 recognizes patent protection for software related invention for the member states so long as the invention satisfies the other requirements[20] for patentability which are country specific. Therefore, software may be granted patent protection in a particular country if it fulfils the specific conditions set forth under the laws of that country.

Article 39 of TRIPS provides an alternative to copyright protection. It talks about protection for undisclosed information and offers a trade secret regime for software protection[21]. Trade secret regime is applicable for the protection of trade secrets which may include software. Certain software may contain lot of valuable and confidential information about a company which forms its trade secret. Civil and criminal actions are provided for in most legislation against the unauthorized disclosure or use of confidential information. In this case, there is no exclusive right, but an indirect type of protection based on a factual characteristic of the information (its secret nature) and its business value[22]. Unlike patents, trade secrets are protected as long as the information is kept secret[23].

Thus, TRIPS does not preclude additional forms of protection for computer programs and a member can offer patent, copyright and trade secret protection for computer programs[24]. Keeping in mind the higher standards of creativity required by patent law the software developer can choose any form of protection which is most desirable to him. As the source code is comprehensible only by a trained programmer and not by normal persons, the proprietors generally protect the source code under the trade secret regime and the object code is protected as a copyright[25].

Berne Convention: The Berne Convention does not explicitly mention computer programs in its illustrative list of copyright works. However, as per TRIPS, member states should recognize computer programs (software) as literary works.

Article 2 (7) of the Berne Convention makes the protection of works of applied art dependant on domestic legislation i.e. the extent to which protection may be granted and the conditions under which such works will be protected is dependant on the statute of the particular country where the work originated. Works enumerated in Article 2 of the Berne Convention are mere illustrations of the kinds of works to which copyright might extend. These illustrations are not exhaustive. Therefore, works such as computer programs that exhibit utilitarian characteristics and also contain expressive elements can be brought under the ambit of work of applied art[26].

However, Article 7 (4) of the Berne Convention exempts, inter alia, the works of applied art from the general term of protection and sets up a minimum term of only 25 years from the making of the work. As article 2 (7) makes the protection of works of applied art dependant on domestic legislations, the term of protection may be applicable accordingly with respect to different countries.

WIPO Copyright Treaty: In 1996, two copyright treaties were negotiated under the auspices of WIPO. These treaties are: WIPO Copyright Treaty (“WCT”) and the WIPO Performances and Phonograms Treaty (“WPPT”). The WCT of 1996 is a special agreement to the Berne Convention and requires compliance with Berne Convention. This treaty makes explicit that computer programs are protected as literary works under Berne Convention. It also states that compilations of data for which the selection or arrangement of the contents are sufficiently original are protected as compilations. Software makers are granted a right to control rentals of computer programs[27].

Position in India: In India, computer software does not form the subject matter of patents as the requirement of the patent law is that the process must result in something “tangible” and “vendible.”[28] Though not many in India demand software protection, it is a much needed protection considering the growth of the Information Technology industry in the country. India has adopted most of the particulars of the international instruments discussed above and has incorporated its own law on software protection based on the essentials of these instruments[29]. The major statutes that cover software protection in India are the Copyrights Act, 1957 and the Patents Act, 1970.

There are very few cases pertaining to protection of software in India, most of them with the Microsoft Corporation as the aggrieved party. The availability of injunctive relief and criminal remedies are particularly vital to the software industry. Software developers often rely on civil ex-parte injunctive procedures to identify infringers[30]. However, civil procedures in many developing nations are time-consuming, cost-prohibitive, and largely ineffective against professional criminals. Therefore, software developers are often forced to rely on criminal prosecutions by public authorities to deter rampant piracy of their products[31]. In a landmark judgment[32], the Delhi High Court awarded punitive and exemplary damages against the wrongdoers who were involved in piracy activities by hard-disk loading. With the growing concept of software technology parks and the importance of software in every business, more and more companies want protection under the legal regime to obviate software piracy.

Consequences: Copyright infringement of software directly affects the profitability of the software industry. Money being lost to pirates means fewer resources to publishers to devote to research and development of new products, undermining the very essence of Intellectual Property Rights. Aside from the legal consequences of using pirated software, organizations forfeit some practical benefits as well like:

• Increase the chances that the software will not function correctly or will fail completely;
• Forfeit access to customer support, upgrades, technical documentation, training, and bug fixes;
• Have no warranty, which means that it is highly vulnerable;
• Increase in the risk of exposure to a debilitating virus that can destroy valuable data;
• The software might actually be an outdated version, a beta (test) version, or a nonfunctioning copy;
• Subjection to significant fines for copyright infringement; and
• Risk of potential negative publicity and public and private embarrassment.

Conclusion: The hazards of software infringement remain large, particularly for those software producers who export their programs. However, combating this threat requires combined efforts of policy-makers, software developers and publishers, businesses, journalists, domestic and international bodies, an active group of non- governmental organizations as well as and concerned individuals. As long as software infringement exists, there will be fewer jobs, less research and development and increased costs in the IT sector.

The following suggestions are recommended:

1. Review and amend existing IPR related legislation to ensure better enforcement in the country.
2. Provide adequate human resources, specialized in IPR and copyright It related issues, such as e –security to ensure adequate enforcement.
3. Encourage universities and research centers to conduct research on computer software infringement in India to identify appropriate preventative actions and remedies.
4. Enhance the support to the awareness campaigns about IPR and copyright organizations. Specific awareness seminars must target software developers, and mainly exporters to educate them about these laws and resources and how to utilize them to protect their intellectual property interests domestically and abroad.
5. Build the capacity of Indian judges to become capable of handling computer software infringement cases.
6. Coordinate with international organizations to learn from other developing countries’ experiences in combating computer software infringement.

Respecting intellectual property rights laws benefits everyone. From strengthening economies, creating job opportunities, protecting honest workers from losing their jobs to criminals, stimulating technological progress to giving customers the genuine software experience they deserve while protecting them from becoming victims.

If for some reason you do not wish to make a written will (which is always the best choice), then you should be familiar with the guidelines and provisions should you find yourself in a situation where an oral will is the only choice available. These wills can usually only be used to dispose of personal property, however a few states will allow real property to pass under these circumstances. It should be noted, however, that the Uniform Probate Code does not make provisions for these wills and some states do not permit them. Generally, oral wills are only used if they are made by someone who anticipates death from an injury received the same day, or if made by a soldier in the field or on a ship who faces peril and death. Many states will recognize an oral will made by military personnel under these circumstances. The oral will must be heard by at least two individuals who are disinterested in the assets or distributions of the same. Many states require that oral wills, or nuncupative wills, be written down by the witnesses within thirty days and probated with the courts within six months of being given. Therefore, oral wills do serve a purpose in emergency situations, but the person giving one should not rely on the fact that their wishes are going to be honored in all circumstances. As always, a written will is by far the best choice, but not always available.

You can find a great collection of legal will forms on various legal form sites.

However, it should be noted that a codicil should only be utilized when a very small, minor change is occurring. If, for instance, a remarriage, divorce, birth, death, asset gain or loss, or the like would require several changes, then an entirely new will should be drafted. It is important to remember that a codicil cannot stand by itself and is not legally binding unless attached and related to a current, signed and witnessed will. A codicil is the appropriate choice if you can alter your present will by simply adding a paragraph or two, which does not affect the provisions set forth in the rest of your will. If that is true and the change is minor, then this is the correct action to take when deciding a change in the distribution of your assets.

1. if there is a spouse and no children or parents of the deceased, the spouse receives 100% of the assets;
2. if there is a spouse and children, all of whom are also the issue of the surviving spouse, the spouse receives the first $50,000 plus ½ of the balance, and the children split the remaining assets equally;
3. if there is a spouse and one or more children who are not the issue of the surviving spouse, ½ is given to the spouse and all children will split the remaining assets;
4. if there is a spouse and parents, but no children, the spouse will receive the first $50,000 plus ½ of the balance of the assets, with the parent(s) receiving the remaining assets equally;
5. if there are only children and no parents or spouse, the children will split all assets equally;
6. If there are no surviving parents, spouse or children, then assets would be split equally between brothers and sisters if applicable; and finally
7. if only grandparents survive the deceased, the assets would be split equally among them.

However, if none of these circumstances are applicable and there are no relatives, the state would determine where your assets would be distributed. Therefore, if you wish to split your assets in a manner contrary to the pre-decided legal allotments in your state, or if you have no relatives and wish to divide your assets among your favorite charities or friends, you definitely need a will to make certain that your wishes are properly carried out upon your death.

States with statutes allowing LLPs (limited liability partnerships) are often related in statute to LLCs. There are certain rules to follow when forming an LLC (some states may require additional guidelines), some of which are:

1. The LLC must be formed by two or more members;
2. The duration of the LLC must not exceed 30 years;
3. LLC members’ shares cannot be freely transferable;
4. Members must elect the main mangers of the LLC; and
5. There are no limits on who may become a member of the LLC.

Federal tax law treats an LLC as an association, which must bear a resemblance to a corporation in order to be taxed as a corporation. Even though the formation of an limited liability company sounds complicated, with the right factors present, and in alliance with state law, this is a very intelligent way to set up an enterprise. Starting an LLC can all be done by simply following the formats prescribed, making sure all aspects are adhered to, and requirements are in compliance with governing regulations.

These sites establish rules to prevent the buying and selling of non-appropriate items, price fixing, pornographic content, live animals, and many other stipulations which could render them out of business should be government find the owner/corporation to be in violation. Many terms of use agreements also protect users from copying, duplicating or using the designs and formats of these sites to create sites of their own. The terms of use agreement also protects these service sites from unknowingly engaging in unlawful activity by its users. The businesses which own and run these valuable sites definitely do not want to be held legally responsible for the actions of users who purposely violate their user agreements. That is why a “disclaimer” of responsibility is also built into most user agreements, relieving the parent company from activity which they may not be immediately aware of. Even though the company usually has an entire staff to monitor the buying, selling, and notices, things can often slip in and go unchecked for several hours, even days. These terms of use agreements simply protect the user from unwittingly entering into inappropriate activity and the main company from being held liable for the same.

The receipt protects both parties involved. The seller, or person giving the item, has proof that it was indeed turned over to someone else. Usually the receipt states the legal names and addresses of both parties, the purchase price or conditions under which the item or money was turned over, and the date. It is quite similar to a bill of sale in showing that a transaction has taken place. With the receipt, the seller can offer proof for taxes and legal purposes that he or she sold, or turned over (donated), property/items of value, thereby obtaining a monetary deduction for the same. Receipt forms should also be utilized in landlord/tenant matters to prove that security deposits, rent and repair bills were actually honored. When obtaining a service, such as car rentals, vehicle repairs, haircuts, dry cleaning, etc., it is also important to have a signed receipt upon payment. The basic rule is that any time you wish to prove you did indeed turn over property or funds to another party, you should receive a receipt to prove that the transaction occurred.

A quitclaim deed is often utilized when the circumstances don’t necessarily involve a straightforward purchase of property, yet the ownership needs to be altered. Unlike a warranty deed or a grant deed, a quitclaim deed is when the grantor (owner) makes no promises about his or her interest in the property. The grantor simply releases any interest in the property that he or she may possess without any further provisions. The quitclaim deed is most often utilized upon the finalization of a divorce, where one spouse agrees to turn over their half (or other percentage) of the property to the other spouse. Most often, this involves a transfer of funds where one party “purchases” the other party’s interest, but this is not necessarily required. The provisions of the quitclaim deed are either determined by the court as part of the divorce stipulations, or agreed upon by the parties themselves. A quitclaim may also be used when, for instance, several children are left property upon the death of their parent(s), and one or more children may wish to sign over their interest(s) to another child or children. Again, this may involve a transfer of funds, but depending on the agreement between the children, that isn’t always true. A quitclaim deed is usually the best format for changing ownership within families rather that a warranty or grant deed. Additionally, many states allow the transfer of property through quitclaim provisions without the parties having to pay transfer taxes, so that is another excellent reason this type of transfer should be explored if possible.

A personal promissory note for a loan has many parts. It will set forth the full names and addresses of both the lender and the borrower. The amount of the loan will be stated, along with any terms of interest and the length of the loan. Payment terms will give the amount of each month/weekly/yearly payment until the loan is considered paid in full. The promissory note will also spell out remedies and actions should the loan be defaulted upon or if payments are late. Without this type of formal agreement, there is no guarantee that loaned money will be repaid to you on time, or even at all. Promissory notes protect everyone involved. They not only assure the lender a legal recourse if the loan is defaulted upon, but they protect the borrower should the lender decide to change or alter verbal terms throughout the life of the loan. Once this form is completed and endorsed, there should be no questions, confusion and difficulty with the performance of either party. Lastly, as with any other legal forms, all signatures must be notarized and/or witnessed.