Small Business Resources

As President of the Women Business Owners of Montgomery County, I have the opportunity to learn about various resources and programs aimed at women-owned and small businesses here in Montgomery County. Earlier this month, I attended the launch of the new Rockville Women’s Business Center. RWBC began as an initiative of the non-profit Rockville Economic Development, Inc. (REDI). The Center is located within the REDI offices at 95 Monroe Street in downtown Rockville, and offers tailored training, counseling and technical assistance to help entrepreneurs start and build successful business enterprises that are positioned for long-term growth. The Center is open to all and promises to be a great resource for both start-ups and companies looking to grow and expand.

I also recently attended a briefing by Robert Carpenter of the U.S. Small Business Administration on the new Small Business Jobs Act, and how this legislation affects our small business community.

One change that caught my attention is a provision that will allow some small businesses to refinance their owner-occupied commercial real estate mortgages into the SBA 504 loan program. Regulations implementing this provision should be issued during the first quarter of 2011. The law also sets higher loan limits for the 7(a) and 504 programs ($2 million to $5 million) and expands the number of small businesses eligible for SBA loans by increasing the alternate size standard to those with less than $15 million in net worth and $5 million in average net income.

The briefing, hosted by the Montgomery County Department of Economic Development (“DED”), also included information on the Small Business Revolving Loan Program, administered by DED, which provides “micro” loans of between $5,000 and $100,000 to small businesses which are looking to expand in Montgomery County and may not qualify for traditional private banking financing.

The Small Business Revolving Loan Program recently received a $2 million infusion to provide loans to small businesses whose expansion includes the creation of new jobs or the relocation of existing jobs into the County. Eligible businesses must have gross revenues of less than $5 million annually and fewer than 75 employees. To learn more, go to http://www.montgomerycountymd.gov/dedtmpl.asp?url=/content/ded/financing/small-business-revolving-loan-program.asp.

Who Owns Copyright in Source Code in Technology Start Up Company?

Start-up ventures, especially in the area of technology, often begin based on nothing more than good faith assumptions of the founders. Frequently they operate informally without understanding the need to document the relationships among the venture, its principals and its employees. More often than not avoidable disputes ensue, creating needless expense, arguments and sometimes the split-up of the founders or the loss of key employees leading to the dissolution of the venture.

JustMed, Inc. v. Michael Byce, a case decided by the U.S. 9th Circuit Court of Appeals earlier this month, involved a dispute between the founders of the venture about the ownership of the copyright in computer source code. This case is a classic illustration of what not to do; these facts are often present in startup companies (not only the IT field), namely the absence of written agreements and formal employment procedures.

Former brothers-in-law, Joel Just and Michael Byce, patented a device to help those whose larynxes have been removed. Together they formed JustMed for the manufacture and development of the necessary hardware and software. Byce was a shareholder and served on the Board of Directors. He took over the development of the software from a company employee, and basically rewrote the source code. JustMed had no employment agreement with Byce; he created the source code at home; worked his own hours; and his pay was in company stock.

Byce was anxious that he would not receive his fair share should there be a buy-out or merger of the company. So, to protect what he considered his intellectual property, he deleted the source code from the company’s computers.

The expected lawsuit followed. From JustMed’s point of view, it owned the copyright in the software on the theory that Byce was its employee and, therefore, the source code was a “work made for hire.” Byce countered, arguing that he was an independent contractor and, therefore, owned the copyright in the work.

In deciding whether an employer/employee relationship existed, the Court examined several factors to determine to what extent JustMed controlled the manner and means of the creation of the source code. Typically in employee vs. independent contractor disputes, factors such as whether an employment agreement exists; whether taxes are withheld and social security paid; to what extent the employer controls the creation of the work product; and what level of skill is required in the work, are examined to see which side proves stronger.

Here, despite that JustMed operated informally as to Byce’s compensation, namely, by the issuance of stock; did not exert control over the manner and means of the creation of the source code; and was lax in its tax and withholding procedures, the Court nevertheless concluded that Byce was an employee, making the source code a work made for hire, which meant that JustMed owned the copyright in it.

In other circumstances, such informal employment practices could be seen to favor an independent contractor interpretation. Here, because of the start-up nature of the technology enterprise, the Court relied on other factors (such as that a software developer is expected to be inventive and work independently, that the project was central to JustMed’s business and that Byce performed other tasks for JustMed) to buttress its conclusion that he functioned as an employee.

Regardless of whether one considers the outcome fair in this case, had some of the variables changed slightly, it is unclear whether another court would give similar leeway to a technology company faced with a challenge to its copyright ownership in its software. But why take the risk? Had JustMed documented its relationship with Byce and specified who owned the copyright, it could have avoided the expense, disruption and animus that both sides experienced.

Is now a good time to start a business? Yes!

Is now a good time to start a business? Yes, it is!

At Press, Potter & Dozier, LLC, we've seen an uptick in recent months of entrepreneurs seeking help in starting new businesses. This might be a surprise to some, given the dour economic news in the newspapers, especially the perception that the "credit crunch" for new and existing businesses getting access to credit is still an insurmountable obstacle.

Our clients tell us, and our experience bears this out, that now is a great time to successfully start a business. Our bank clients have told us that they are looking for new lending opportunities. The key is having a good product or service that meets a currently-unfulfilled need. For example, this past week's Washington Post Magazine (June 28, 2009), highlights two local women who started a business helping organizations use social networks like LinkedIn, Facebook and Twitter to keep in touch with their members.

A key in starting any business is to control upfront costs. And legal costs in particular can be dramatic for a new start-up. Businesses must be registered and licensed, trade names need protection, employment agreements must be drafted, independent contractor agreements must be created/or reviewed and leases negotiated. While an entrepreneur may be a great "idea" person, it can be especially daunting to wade through all the requirements that must be met before a new business can open its door.

PP&D's manual, Starting A Business In Montgomery County, Maryland (written by my colleague Susan Potter and me) identifies all the steps that must be taken in forming a business. In easy-to-read language, we describe those items that can be done independently compared to other tasks where it would be more appropriate to seek outside help. The Manual has links to sites that have forms for many steps of the start-up process, such as registering businesses, selecting a name, securing licenses, and others. We also provide directions for obtaining insurance, opening a bank account, hiring employees, and choosing a location. It is a must-read for all new business owners in Montgomery County, Maryland.

You can preview an excerpt (in PDF form) of Starting A Business In Montgomery County, Maryland. Ordering information is here. In some future posts, Susan or I (or our colleagues Fred Press or Cecilia Jones) will highlight particular parts of the Manual and the start-up process that we feel deserve more attention. And we'd appreciate hearing your comments about the Manual as well!

Keywords: startup, starting a business, starting your own business, starting a business in maryland