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Welcome to the Holland & Knight Digital Technology & E-Commerce Blog, featuring news, observations and analysis related to technology law.

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Warranty is among the most essential terms of a software license, as the provision often concerns the functionality and capability of the software. Many warranties are the subject of concerted negotiations, but often the parties revert to boilerplate.
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September 13, 2018
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Often at issue in outsourcing agreements is whether the qualifications and experience of the outsourced consultants comport with the realities on the ground once the project begins. In a recent case, a service provider hired to implement a software reboot saw its project go awry when the customer alleged that the provider misrepresented, among other things, the capabilities of its outsourced employees.
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A treatise on "The Language of the Law" introduced its approach to contract law with the following maxim: "The law is a profession of words." Accordingly, one of a court's most frequent tasks is interpreting ambiguous contracts created by the use of ambiguous language in contracts; however, by the time a court is deciding the issue, costly litigation may have taken years. In a recent case, parties to a software development and license agreement confronted this unfortunate truth, and both left unsatisfied. See Apacheta Corp. v. Lincare, Inc., No. 16-2030, 2017 WL 5901085 (E.D. Pa. Nov. 30, 2017).
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Trade secret protection applies of course only to confidential information. Absent certain specialized exemptions, publicizing the intricate details and applications of a trade secret extinguishes whatever “property right” once possessed by the holder. A closer question is what constitutes sufficient notice to a user of the claimed trade secret protection of certain information? The Southern District of New York recently confronted this issue.
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February 28, 2018
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On October 24, 2017, the Court of Appeals for the Fourth Circuit decided SAS Institute, Inc. v. World Programming Ltd., 874 F.3d 370. In this case, the parties disputed whether defendant/appellant breached a software license by accessing the software’s source code. Plaintiff/appellee alleged that by accessing the source code, and then incorporating certain functionalities into its own competing software, defendant had breached the license’s anti-reverse engineering provision.
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On Nov. 17, 2017, the United States Court of Appeals issued its decision in Original Appalachian Artworks, Inc. v. JAKKS. This case concerned the right of a licensor to execute a successor licensee while the relevant license remained in force.
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December 14, 2017
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For businesses both large and small, cybersecurity threats continue to proliferate, to the point where being the victim of a cyberattack seems almost inevitable.
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The "Good Samaritan" (which is the statutory language used by Congress) provision of the Communications Decency Act of 1996 (CDA, codified at 47 U.S.C. § 230(c)(1)) shields social media platforms from liability related to certain types of third party content, including user-generated content.
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In 1999, the Uniform Law Commission promulgated the Uniform Electronic Transactions Act (UETA). The primary purpose of UETA is to equate the enforceability and validity of electronic signatures with handwritten signatures. The latest electronic signature case, litigated under Illinois's UETA equivalent, delves into whether the plaintiff's provision of username and password to a third party is a sufficient electronic signature so as to convey authorization to a third party to execute on the plaintiff's behalf an agreement requiring mandatory arbitration.
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The purview of federal preemption in the context of copyright law is broad. Among many other causes of action rooted in state common law or statutory liability, courts have found unfair competition, misappropriation, breach of contract and tortious interference claims to be wholly preempted by the Copyright Act. To circumvent dismissal on preemption grounds, a plaintiff must show an "extra element" that does not pertain to rights intrinsic to those protected by the Copyright Act. In a recent case in a federal court sitting in the Eleventh Circuit, a plaintiff attempted to plead around a pre-emption defense on grounds that the state has an interest in enforcing an alleged "wanton" indifference to abiding by a negotiated but not executed software license agreement.
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November 28, 2016
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It is not breaking news that arbitration clauses are both increasingly favored and enforced, especially after the 2011 Supreme Court decision that held that the Federal Arbitration Act preempted a California state law that had prohibited contracts from barring class-wide arbitration. Unsurprisingly, this has led to an increase in commercial contracts which prohibit aggrieved consumers from circumventing mandatory arbitration clauses through bringing class action suits.
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May 11, 2016
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It is uncontroversial to posit that most people sign far more contracts online than the time-honored method, ubiquitous during the pre-Internet era, of putting pen to paper.  Given the dissimilarities between signing a contract online, with its hyperlinks, scroll boxes and assent buttons, and in person with a Bic, a veritable flood of case law as to the legality of an online contract has arisen. 
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April 28, 2016
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Despite predictions that paid apps would be mostly eliminated by 2016, 34 percent of users in five surveyed countries said they do upgrade from the free app to a paid version. In the case of the free remote login app LogMeInFree, and the paid versions offered by the same developer, the rights of the developer to migrate users from free to paid versions of the app has recently incited litigation in California.
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February 23, 2016
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In an October federal court case in Illinois, a party counterclaiming against a Telephone Consumer Protection Act violation with a breach of a software license used a novel trick in that it attempted to prove that the instigation of Telephone Consumer Protection Act-related litigation thereafter waived any rights to arbitration that the instigating party may be afforded under a separate software license agreement. This unique case is the subject of this post.
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October 30, 2015
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Agreeing to the terms of a privacy policy has become mandatory on many websites, but this does not seem to have increased anyone's desire to read them. These privacy policies are generally lengthy and couched in legalese, so many website users do not read them thoroughly or at all. However, some industrious users do take in the entirety of the policies. In addition, some even more motivated users have in recent years taken an additional step and begun to sue based on supposed violations of the policies.
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August 12, 2015
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Despite the increasing propensity of clickwrap agreements to include boilerplate language alongside the icon or button to be clicked, such as "By signing this form, you agree to all Terms and Conditions associated therewith," some entities continue to, whether intentionally or not, refuse to fall in line. As the following case illustrates, the absence of both this language and of an online-only user approval process can doom the enforceability of other contracts referenced by the clickwrap agreement.
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August 3, 2015
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Governing law provisions are seemingly ubiquitous in all contracts, but even so, drafting errors, or an arguable lack of precision, remain prevalent. Unintended consequences can arise from the omission of even two words, as all lawyers undoubtedly recognize.
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June 22, 2015
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It is well-known that a surfeit of information can be gleaned, if the user so chooses to provide it, from viewing a user's LinkedIn profile. Employment history, references, educational background, and even a photo are among the panoply of facts one can glean from a quick once-over of someone's profile on LinkedIn. A number of individuals in California think that the reference information, and solicitation of such references by employers, can lead to adverse consequences from some LinkedIn users. A closer question is whether these reference results that focus more on the searcher than the target can constitute an actionable consumer reports issued by a consumer reporting agency (in this case, LinkedIn) under the Fair Credit Reporting Act.
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April 29, 2015
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Designs of ergonomic devices are considered intellectual property by the variety of businesses that provide services related to the optimization of such devices. Such designs, which encompass guides, layouts, images and manuals, recently became the subject of an intellectual property dispute in federal court in Michigan between two companies in the field. The opinion issued in Humantech, Inc., v. Ergonomics Plus, Inc., discussed herein did not focus on the substantive arguments of the plaintiff, but rather on whether the case could be heard in a Michigan court against an Indiana company without offending Constitutional due process limits on personal jurisdiction.
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April 20, 2015
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The enforceability of a wrap agreement (browsewrap, clickwrap and shrinkwrap) can often turn on what to the untrained eye may be mere minutiae. Such minutiae can include the nuances of the design of a website.
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March 26, 2015
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