Short answer: the Oracle v. Google API case told software companies that APIs and even functional code can be copyrightable, that these disputes are intensely fact-specific, and that proving copyrightability is far easier than proving infringement. On May 9, 2014, the appellate court handed down its 69-page decision in the
Short answer: a SaaS confidentiality agreement (NDA) is not boilerplate. In the Techforward v. Best Buy case, a startup disclosed its trade secrets to a prospect that walked away and built a copycat, and the NDA is what turned that into a $27 million judgment. Use one, disclose in layers,
Short answer: telling your customers to back up their data, in the contract, in the product, and in your documentation, is a cheap and genuinely effective legal defense. A Utah Supreme Court case shows that those customer data backup warnings, combined with a disclaimer of indirect damages, can get a
Short answer: the CarrierIQ takeaways for software vendors come down to two things. In a vendor-plus-platform stack, the party that decides what data to collect and whether to disclose it carries the privacy responsibility. And a too-broad indemnity can put the software vendor on the hook for the platform’s mistakes.
Short answer: three lessons from the HyperQuest case for an exclusive software license: use copyright language in the grant, do not retain so many rights that the “exclusive” license is not actually exclusive, and scope exclusivity to a territory, field of use, or medium. It is not often that a
Short answer: yes, an instant-message exchange can change a written contract. In one case, a vendor typed “NO LIMIT” and the other side replied “awesome,” and a federal court treated that as a binding modification, with no signature anywhere. IM contract modification is real, and it should change how your
Short answer: a statistical study of 358 trade secret cases shows the people who steal your secrets are almost always insiders, employees and business partners, and the one thing that decides whether you can stop them is whether you took “reasonable measures” to keep the information secret. For a software
Short answer: the Oracle v. SAP case (a $1.3 billion jury verdict, later reduced to about $356.7 million) is a list of what not to do to a competitor: do not download more of their software than you are licensed for, do not ignore the terms of use on their
Short answer: when an employee leaves for a competitor, your ability to stop them from using what they know comes down almost entirely to what you did beforehand: marking and restricting your confidential information, running exit interviews, and using confidentiality agreements. Starwood v. Hilton shows the payoff of protecting trade
Short answer: EULA enforceability has a fraud ceiling. A limitation of liability protects you against most claims, but not against fraud. The Dillard’s v. i2 case turned a $10 million deal into a roughly $246 million judgment. The lesson: never over-commit and under-deliver, and draft against the fraud end-run. There
Quick answer: selling software to the government means living by your own disclosed pricing. Oracle learned that the hard way. On July 29, 2010 the Department of Justice sued it for overcharging federal agencies, and in October 2011 Oracle paid $199.5 million to settle, the largest False Claims Act recovery
Short answer: the FTC’s Endorsement Guides require that any paid or incentivized endorsement be disclosed, and that both the advertiser and the sponsored endorser can be liable for false, misleading, or unsubstantiated claims and for failing to disclose the connection. If your software company pays bloggers, influencers, or affiliates to
Short answer: a well drafted EULA can end a lawsuit before it ever reaches a jury. In Hayes v. SpectorSoft Corporation (E.D. Tenn., November 3, 2009), the software maker won summary judgment and walked away from the case, and the way the end user agreement was written was a big
Short answer: Yes. The 2007 Leegin decision changed resale price maintenance software rules — overturning 96 years of law so that vendors can now influence what their distributors and resellers charge, in certain situations and within antitrust limits. Did you know the US Supreme Court changed software and SaaS distributor
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