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Preserving the Crown Jewels: Practical Strategies for Protecting Source Code in Patent Litigation Discovery
In today's Internet age, the most valuable asset belonging to many of the world's most successful organizations is “source code” ' the programming underlying all software operating systems, databases, and applications. As a result, keeping source code from leaking to the public is of paramount concern, especially in light of the fact that source code published over the Internet can proliferate at an exponential pace with little more than a series of mouse clicks. If confidential code is released into the public domain, even inadvertently, it risks losing any trade secret protection it once enjoyed. See, e.g., Linkco, Inc. v. Fujitsu Ltd., 230 F. Supp. 2d 492, 498-99 (S.D.N.Y. 2002). In short, once the “genie” is out of the bottle, it cannot be put back in.
To preserve the secrecy of their source code, many companies impose strict security policies on their own employees. As an example, code may be restricted to a small number of secure facilities, computers, and company employees who have a specific need for access. Even employees that do gain access may be prevented from viewing or downloading a full copy of the source code, but may be restricted instead only to necessary portions of the code. Furthermore, password protection, copy protection, and source control software are ubiquitous ' making unauthorized access difficult while keeping close track of who last “checked in” and “checked out” source code from a secure server.
In litigation, especially patent litigation, these same software companies often face discovery requests from opponents demanding the production of the entirety of the source code for a given product or products ' typically as the code is contained in easily searched, and thus easily copied, electronic formats. In practice, most of these discovery requests result in the production of all of the requested source code to an opponent's attorneys and expert consultants. Considering that opponents in litigation are often hostile competitors in the marketplace, such production is tantamount to a leap of faith in which the producing party gambles heavily on the receiving party's compliance with any obligations it may have to preserve the confidentiality of the source code and to use it only for the purposes of the litigation.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?