Sachin Rekhi

While I am a big believer that entrepreneurs should spend the majority of their time focusing on getting a quality product to market, one piece of overhead that should never be overlooked is incorporating or forming an LLC prior to product launch. To some this is obvious. Of course you setup your corporate structure before anything else. But to hackers and hobby programmers this may not be their first instinct. Sometimes you have a hobby website that just starts taking off and you never planned on it being a real business. But then it starts to become one and you may not have the protections incorporation affords.

Take a look at this recent case, EMI vs. Seeqpod. This case has received a lot of press lately not only for the fact that EMI has joined Warner in suing Seeqpod, but EMI went so far as to sue Ryan Sit, creator of Favtape, for simply using the Seeqpod API. This case has huge implications for mashups across the web because it then potentially holds all mashup developers liable for potential infringement due to their use of third party APIs.



Many saw this case as particularly nasty of EMI because they sued Ryan Sit, the developer of Favtape, himself. Since Ryan Sit was named directly as a defendant, all his personal assets are now potentially at stake in this law suit. It's an unfortunate turn of events given that Ryan built Favtape simply as a side project outside of his day job. But what isn't evident from the press is whether Ryan ever incorporated or formed an LLC around Favtape in the first place. The site nor the parent company Freestyle Labs show any indication on their sites of being incorporated, which could suggest the company may likely be simply a Sole Proprietorship.

Regardless of what the specifics of the Favtape case end up being, the point is that it is important for every entrepreneur to protect himself by forming either a corporation or an LLC, which affords limited liability protection to the entrepreneur. While sole proprietorships and partnerships are the easiest corporate structures to form, I would highly discourage them since they provide no such protections.

Even among the corporate structures that do provide limited liability protection, one must still decide between forming an LLC, C-Corp, or S-Corp. Out of the three, an LLC is the easiest and cheapest to form. It simply requires an $80 filing fee, a few corporate documents, and paying the annual $800 minimum tax. You can even use services like MyCorporation to come up with and file the documents for you for a nominal fee. So I would suggest that at the very least, you do this.

However, there are many cases where a C-Corp or S-Corp is a much better fit. If you intend to take any outside money at all, you will very likely be required to form a corporation and thus its better to directly incorporate (though you can convert an LLC to a corporation when required). Incorporation is more involved, requires more organizational maintenance, and is more expensive. It can run anywhere from hundreds to upwards of ten thousand dollars to setup everything correctly and maintain it. It is best to work with an experienced corporate lawyer to ensure it is set up appropriately.

I am by no means a lawyer and am not qualified to recommend a specific corporate structure. All I am suggesting though is that you please protect yourself and make sure to incorporate or form an LLC prior to launching your product to ensure that you are not one of the victims in this highly litigious country of ours!