AffiliatesNeeded.Com What's New In Affiliate Marketing

Now that I have your attention, Overstock may terminate its California affiliates tomorrow. The State Legislature is once again considering a bill that would make the Affiliate Nexus Tax law in California. If you are not familiar with this legislation, it defines affiliates as salespeople in order to establish nexus (the legal word for presence in the state) to out of state retailers (namely Amazon and Overstock).

We’ve been through this before. It started out as AB178 a couple of years ago. Kerri Pollard, General Manager of Commission Junction, and I went to Sacramento to testify before the Budget and Finance sub-committee. As my cab pulled up at the State Capitol, I received an e-mail that the bill was pulled by its sponsor. It turns out that there weren’t enough votes to get it out of even the sub-committee.

Now its here… again. Last year it was passed under the cover of darkness and the Governor vetoed it. Overstock terminated us last year as part of the process. Only after the Governor vetoed the bill and issued a statement that he would not allow the Affiliate Nexus Tax to become law did Overstock reinstate all of us. Fortunately, CJ’s policies give us all a week before the termination takes effect so we would have time for the Governor to use his veto stamp (can’t you just picture it in slow motion… the stamp dropping onto parchment on the Governator’s desk…. cigar in his mouth (yes, it would be in the tent outside the Capitol)).

If you are a California publisher in the Overstock program, contact your state senator… NOW. Forward Overstock’s letter and explain how AB1625 (the current form of the Affiliate Nexus Tax) will hurt small businesses in your senator’s district. If you need more information or drafts of similar letters, take a look at the Performance Marketing Association’s website.

Also, there was a good op-ed piece by Loren Bendele in today’s LA Business Journal.

If you didn’t get Overstock’s letter, here it is. Remember not to beat up Overstock for this. This is a bad law that will hurt California’s small businesses and will not generate any revenue.

OVERSTOCK.COM, INC.
6350 SOUTH 3000 EAST
SALT LAKE CITY, UT 84121
PHONE: (801) 947-3100
FACSIMILE: (801) 947-3144

August 30, 2010

Dear Cashbaq:

Overstock.com values your advertising efforts, and hopes to be in a position to continue our business connection for years to come. However, as we notified you in February, there is a measure under consideration in California, likely to be voted on tomorrow, which, if it passes, will likely result in the termination of our business connection. We are urging you to contact your Senator in the California Legislature immediately to oppose the affiliate nexus tax.

By tomorrow the California Senate will have to consider the new tax, which appeared in the Assembly’s final budget proposal as AB 1625 (Section 1), or it will die for this year. In order to pass, AB 1625 needs a 2/3 majority vote. Its chances of passage are unclear; consequently, your efforts in opposition will be highly effective.

Last year the Governor vetoed a similar measure, and we are told that the Governor has not altered his position on this new tax; however, despite this, we are concerned about last minute political compromises.

You will find information on how to contact your State Senator at this location on the Performance Marketing Association’s website.

Please waste no time in contacting your Senator today to oppose the affiliate nexus tax.

Respectfully,

Jonathan E. Johnson III
President Overstock.com, Inc.

Last week, Missy Ward, co-founder of Affiliate Summit, reignited the age-old discussion about what we call our industry. Is it affiliate marketing or performance marketing? Are we affiliates or publishers? Are they merchants or advertisers? Either you think this is important or you are thinking What?! Who cares?!? Still I think the topic is worth a few minutes of your reading time.

What’s in a name?

In years past, I didn’t want to be called an affiliate for two reasons. I don’t really care much about one reason anymore. That one is that there are so many people who give Affiliate Marketing a bad name. There are bad actors everywhere. We’ve come a long way to marginalize these guys… yes, but we still have a long way to go. Either we clean it up or someone else will do it for us.

The more important issue then, and HUGELY important today has to do with what the term affiliate means and how it is being used against us. I am not an affiliate because affiliate links are just one way that we monetize our sites. Why focus on that reason? Of course, the last time I brought this up, Shawn Collins, co-founder of Affiliate Summit, expanded Affiliate Marketing to include just about everything that we could include for monetization. I don’t think that AdSense is an affiliate program but Shawn does (or at least did). I don’t think that we’ll ever agree and entering into a cyclical argument is pointless.

Enter the California State Legislature… and many other states as well

When we went to Sacramento to lobby against AB178 (aka the Advertising Tax) we were told by our advisers not to focus on monetization types or compensation. It seems that to create nexus under the Advertising Tax, an affiliate needs to be compensated on a percentage of sales basis (aka cost per acquisition or CPA). So if we have a link on Cashbaq to a product being sold at Overstock and Overstock pays us a percentage of sales for that product, Overstock would have nexus in California and would be required to collect California sales tax if the Advertising Tax were to pass.

If you drive two three miles down the road to Shopzilla, you would see their nice offices. They too are located in the city of Los Angeles, but they won’t create nexus for Overstock with a link to that same product at Overstock for the same price. Why? Because a link to that same product at the same store for the same price would be compensated on a Cost Per Click (CPC) basis. Shopzilla isn’t an affiliate because of the way it gets paid. That’s advertising.

Are you following this? Neither are our state legislators, such nuances are beyond them. While there is no logic to the taxation we can follow the consequences of such actions to their logical conclusion.

The Logical Conclusion

Ultimately, I don’t care what as an industry we are called. Legislators will define us in their own terms regardless of whether we call ourselves performance marketers or affiliates. The threats to our industry are more important than a debate about what shingle we hang out. Should the Advertising Tax pass and become law in California, many Web-only stores will terminate their relationships with their affiliates. Pure and simple.

The largest ones will be able to switch to a CPC compensation and keep their relationships with their advertisers (Note that loyalty sites will have great difficulty under this scenario and will have to have fewer stores, move out of state or shut down). That means smaller companies will bear the brunt of the burden of such a tax. Many will be forced to shut their doors. Of course, the irony is that small business are generally the ones that lead the economies out of recessions; and California is so heavily tech dependent.

A Personal Note on Dinner

Oh and Missy, dinner is at 7:00. Don’t be late!