Open To Liability
Open-source software is a boon to computer programmers: by sharing the source code for freely released software, anyone (with the skill) can modify it for his or her, or that person's business', own needs. And, as attorneys and business people are aware, the no-longer nascent and quickly growing movement for open-source software has this business-boon tool finding its way into many companies' programming departments. <br>It's also finding its way into their lawyers' offices, because the licensing requirements of most open-source software are creating new concerns, and new work, for lawyers serving the tech industry.
Can The Grokster Settlement Close The File-Sharing Pandora's Box?
Last month, Grokster apparently gave up. The P2P filing-sharing service Nov. 7 filed documents with a Los Angeles federal court reporting that it had reached a settlement in its lengthy legal case with the nation's largest record companies, motion picture studios and music publishers, as represented by the Recording Industry Association of America (RIAA). <br>This decision leads many experts to believe that a distributor of P2P technology with a legitimate intent not to infringe others' rights would not be liable for a third-party infringing use of the technology. But despite that perhaps being the case, the Court failed to create a bright-line test to help identify a "clear expression or other affirmative steps taken to foster infringement" which, as Justice Breyer stated in his concurring opinion and as discussed in this article, could have a chilling effect on others creating or advancing file-swapping and other possibly legitimate technologies. Future litigations will necessarily turn on a case-by-case basis not as to the nature of the technology but potentially on the distributors' business plans.
Sending The Work Out Demands Focus On Software- Related Legal Issues
The centrality of computer technology to all outsourcing transactions means that legal and compliance i's and t's must be dotted and crossed when it comes to software. <br>A recent case illustrates the difficulties that can arise in an outsourcing environment when the lines of responsibility for compliance with third-party software-licensing requirements are not clearly drawn between the customer and the outsourcing firm.
The Right To Copy ' and Use ' Unprotected Product Designs Is Alive And Well
The Seventh Circuit has reaffirmed a competitor's right to copy and use unprotected product designs ' and clarified the ability to do so without violating the Lanham Act for "passing off" or trade dress infringement. <i>Bretford Mfg., Inc. v. Smith System Mfg., Corp.</i> This article examines the legal precedent behind the right to copy and use unprotected product designs in the context of this case, and provide analysis of its impact.
Sarbanes-Oxley Versus The Attorney-Client Privilege
Ironically, the SEC and the Department of Justice, which enforce SOX's criminal provisions, appear ready to burden the traditional ethical obligations of corporate legal counselors to keep client communications confidential in an effort to police the integrity and ethics of other corporate gatekeepers. To that end, the SEC imposes certain reporting requirements on corporate counselors, attempts to preempt state ethics rules, and DOJ prosecutors routinely pressure "target" corporations to waive the attorney-client privilege to obtain "cooperation" points. Corporate counselors must be aware of those initiatives to properly balance their competing obligations.
Beastly Beauty Contest for Preferred Providers
In this compelling snapshot of a growing trend, Eriq Gardner describes the newly expensive vetting procedures now faced by outside firms choosing to pursue business with a highly demanding large client. Gardner also touches on law business practices (<i>eg</i>, long-term fixed-fee contracting for an entire class of a client firms' litigation needs) that may bode ill for the quality of justice produced by the overall legal system
Building a State-of-the-Art Anti-Bribery Program
Anti-bribery laws have serious consequences for ordinary companies doing business internationally. Violations come to light during routine M&A due diligence, when competitors complain or employees blow the whistle, or when companies voluntarily disclose as a part of their Sarbanes-Oxley reporting obligations. When they do come to light, strong internal controls may shield executives from some liability and restore confidence amongst shareholders and regulators.
News Briefs
Highlights of the latest class action cases from around the country.
Sarbanes-Oxley and Licensee Fiduciary-Based Tort Liability for Breach of Contract: City of Hope National Medical Center v. Genentech, Inc.
Over the years, courts frequently have been called upon to determine the nature and extent of the diligence required of licensees, assignees and other parties granted exclusive rights to exploit intellectual property. Dating back to Justice Benjamin N. Cardozo's opinion in <i>Wood v. Lucy, Lady Duff-Gordon</i>, 222 N.Y. 88, 118 N.E. 214 (1917), the courts consistently have held such parties to an implied promise to exercise some measure of diligence to commercialize the transferred property in those cases in which the grantor was completely reliant upon the productivity of the intellectual property user to generate royalties or other consideration.
