End User License Agreements: Every App Needs One

End User License Agreements (“EULAs”) are an App’s equivalent to a website’s  Terms of Use Agreement.  EULAs are technically defined as “the contract between the licensor and purchaser, establishing the purchaser’s rights to use the software.”  Designed to limit the App developer’s liability, platforms such as Apple’s iTunes Store will not even allow Apps to be launched without a EULA in place.

EULAs can contain a number of clauses geared toward describing the App, laying out the acceptable and prohibited uses, and limiting the creator’s liability.  Apple sets out specific minimum terms that must be contained within an App’s EULA before the App can be launched to the iTunes store.  Apple’s minimum requirements include:

1. Acknowledgement that the EULA is between the Developer and User, not Apple;
2. Scope of License providing a non-transferable license to the User’s Apple device;
3. Maintenance and Support clause indicating that Apple has no obligation to furnish maintenance or support;
4. Warranty that in the event of App failure, Apple has no warranty obligations beyond refunding the purchase price;
5. Product Claims that the Developer, not Apple, is responsible for addressing claims that the App does not conform to legal requirements;
6. Intellectual Property Rights reside solely with the App Developer;
7. Legal Compliance clause that the User represents that are lawfully using the App;
8. Developer Name and Address must be included in the App so that User’s may contact the App Developer with questions/concerns;
9. Third Party Beneficiary identified as Apple.

Typically, App related lawsuits are successfully blocked by the EULA.  As one author put it, “User sues company; company cites EULA barring such lawsuits; judge grants company’s motion to dismiss End of story.”  However, that is not always the end of the story.  Due to the click-wrap nature of EULAs (i.e. the user scrolls through the EULA and simply clicks “I agree”), some Courts have found EULAs to be contracts of adhesion.

Still other Courts have chosen to disregard the EULAs liability limiting provisions and allow lawsuits, such as a lawsuit brought against Microsoft related to the Windows 10 Update that rendered Plaintiff Teri Goldstein’s computer useless.  Microsoft’s EULA only allowed for arbitration, but Teri Goldstein successfully netted $10K in a California Small Claims court due to the haste in which Microsoft launched its Windows 10 Update.  As she said, “Microsoft cannot just say, ‘Read our User agreement form, we hold no responsibility, you cannot sue is and go away.”

A well-developed App and well-crafted EULA can prevent outcomes such as the one described above.  To be sure that a EULA is sealed as tight as possible, enlisting the assistance of an internet law attorney is the best option.  If you are developing an App and need assistance drafting a EULA, contact Traverse Legal today to see how we can help get your App legally protected and ready for launch.

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What Is An Acceptable Use Policy?

An Acceptable Use Policy (“AUP”) (also known as a “Fair Use Policy”) “is a set of rules applied by the owner, creator or administrator of a network, website, or service that restricts the ways in which the network, website, or service may be used and sets guidelines as to how it should be used.”  Similar to a Terms of Use Agreement, AUPs help protect organizations from potential legal action that may be taken by users.

Entities that typically utilize AUPs include schools/universities, corporations/businesses, internet service providers, and website owners.  It is commonplace for organizations such as these to require that users sign an AUP prior to being granted access the network.  With the internet growing in complexity, it is essential to have users sign an AUP so that they are explicitly aware of what they are and are not allowed to do while connected to an organization’s network.

Included in a standard AUP are clauses specifying the purpose and scope of the policy, the user’s rights and responsibilities, acceptable uses, prohibited uses, and privacy standards.  Having a good AUP in place will help bolster your organization’s reputation and productivity all while shielding you from lawsuits brought by users (i.e. an unfair dismissal lawsuit from firing an employee for misuse of the company internet can be avoided with a clearly written AUP).

If you are an organization in need of an AUP, contact Traverse Legal today so that one of our skilled Attorneys can assist you in drafting an AUP that fits your particular needs.

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Are state anti-SLAPP statutes available in Federal Court?

Previously we had written about the strategy of selecting a forum to file a defamation suit based on whether a given state had an anti-SLAPP statute.   A SLAPP lawsuit is technically a strategic lawsuit against public participation where the Plaintiff ostensibly brings the lawsuit to silence the speaker without a solid basis for a legitimate defamation claim.  An anti-SLAPP statute typically allows a Defendant speaker to file an anti-SLAPP motion early in the case if the speaker has written or spoken on a matter of public concern shifting the burden to the Plaintiff to establish a probability of prevailing on the merits of the claim or face dismissal and sanctions for filing the lawsuit.

While the 9th Circuit covering some western states including California have ruled that state anti-SLAPP statutes are available in federal court, Federal Courts in other areas of the country have taken a contrary position and ruled that a state anti-SLAPP states imposes an impermissible hurdle to a plaintiff in federal court whose rules of civil procedure only require a plausability rather than a probability of prevailing to withstand an initial motion to dismiss the case, making a plaintiff’s road into discovery in the case much easier than in state courts or Federal courts that recognize the applicability of state anti-SLAPP statutes in Federal Courts.  A recent federal court case in Georgia in the case of Davide Carbone v Cable News Network (CNN) has determined the state’s anti-SLAPP statute cannot be used to prevent the plaintiff in that case from proceeding with the case.  Carbone was the chief executive of a Florida hospital when CNN reported a higher than average infant mortality rate for open heart surgeries, resulting in Carbone’s forced resignation and subsequent defamation suit against CNN.

Defamation plaintiff’s may now have another avenue that would provide for the avoidance of state anti-SLAPP in selecting a federal court forum where anti-SLAPP standards that would require a probability of prevailing will not be applied.

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How Long Does a Patent Last?

As a general rule, a utility patent has a term of 20 years from the date on which the application for the patent was filed in the United States.  Even though the term of a utility patent is measured from its filing date, the term does not actually being until the patent issues.  If the application that eventually issues into a patent specifically references an earlier filed non-provisional U.S. or international patent application, the term ends 20 years from the filing date of the earliest such application.  Thus, provisional patent applications are not considered in the calculation of the 20-year patent term.

 

There are several exceptions to the 20-year patent terms.  First, patents will expire short of their 20 year pendency if the necessary maintenance fees are not timely paid to the U.S. Patent and Trademark Office (USPTO) to keep the patents alive.  Second, the USPTO may provide patent term adjustments to patents that endured unwarranted administrative delay by the USPTO as pending patent applications.  Third, patents granted from continuing patent applications (e.g., continuations, divisionals, or continuations-in-part) will each have a patent term that ends 20 years from the filing date of the earliest application from which a benefit is claimed.

 

For design patent applications filed on or after May 13, 2015, the term is 15 years from the date the patent was granted.  Patents issued from design patent applications filed before May 13, 2015 have a term of 14 years from the date the patent was granted.

 

Even though the USPTO does not calculate expiration dates for patents, the USPTO does provide a downloadable patent term calculator to help estimate the expiration date of a patent.  The calculator can be used to estimate the expiration dates of utility, plant, or design patents.

 

As you can tell, determining the expiration date for a patent is not always straightforward, even with the assistance of the USPTO patent term calculator.  Whether you are a patent owner; a business owner looking to acquire a patent; a competitor to a business that owns a patent in your field; or an individual/party being accused of patent infringement, identifying the exact expiration date of a patent is critical.  Feel free to contact a Traverse Legal patent attorney to assist you with your patent needs.

 

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Franchises: Nothing Without a Trademark

Put simply, a trademark is a necessary building block to any franchise.  We have represented franchisors and franchisees across a whole range of trademark matters.  We have helped franchisors select, clear, apply for, register and enforce their trademark.  We have been there when a franchisor chooses to, or is forced to, rebrand its trademark. There are numerous trademark and brand protection strategies for franchisors, though the following should absolutely be considered:

1. Trademark Selection – Choose a distinctive trademark and be sure it is one that will not subject you to claims of trademark infringement.’
2. Register Your Trademark – Apply to register it as soon as possible, including in the geographic locations in which you intend to do business.  For US-based franchisors, start with the United States Patent and Trademark Office.
3. Police, Protect and Enforce Your Trademark – This is important to both franchisors and franchisees alike, with the responsibility for doing so applicable to both.
4. Control the Quality of Your Trademark – Controlling quality pertains to both the goodwill associated with the trademark but also the underlying goods/services offered in connection with the trademark.
5. Recognize the Importance of Your Trademark – Without your trademark, you have no franchise.  As a franchisor, if you fail to maintain your trademark, you are likely in violation of your franchise agreement with your franchisee.

Ultimately, trademarks are as important to a franchise as the underlying good or service.  The trademark is the basis for the license to use the the franchised items.  If you start knowing you wish to operate as a franchise, you can give the trademark process the attention it deserves immediately.  However, knowing that some businesses start without the idea of franchising only to actually become a franchisor, any business should ensure their trademark rights are in order.

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Queen B Must “Get in Formation” for a Lawsuit

The estate of late rapper Messy Mya has sued Beyoncé for copyright infringement, alleging that Beyoncé used Messy Mya’s voice without permission in the “Formation” music video.  Specifically, Messy Mya can be heard in the beginning of the song saying “What happened after New Orleans?” and “B***h I’m back, by popular demand,” as well as later with Messy Mya’s supposedly signature phrase “Oh yes, I like that.”  Requesting an astronomical $20 million in damages, the estate claims that it has not received any money or acknowledgement from Beyoncé since the February 2016 “Formation” release.

The issue of whether music sampling such as this constitutes copyright infringement has plagued the music industry for some time.  Artists such as 2 Live Crew, MC Hammer, and Vanilla Ice have been targeted in copyright infringement lawsuits based upon the sampling of other tunes like “Oh, Pretty Woman,” “Super Freak,” and “Under Pressure,” respectively.  Some musicians have found protection under the Fair Use Doctrine, which provides defense to copyright infringement claims for works that are “transformative.”

While $20 million might be a drop in the bucket for Queen B, the potential for significant copyright precedent is apparent.  With cases like those against Robin Thicke still pending, copyright law could be drastically altered if music sampling is found as either infringement or fair use.  The question continues to linger – how far is too far when it comes to music sampling?

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