Software and Technology
The software industry is one of the fastest growing creative sectors. The legal landscape governing the protection of software is dynamic and continually changing. The Law Office of Shourin Sen prides itself on its dedication to the constantly evolving legal and tactical structures. Our software and technology law practice handles an array of transactional and litigation issues including international and domestic inbound and outbound licensing, software as a service licensing, open source licensing, software development agreements, tax considerations, federal and state computer crimes, and cybersquatting, typesquatting, and other domain name disputes.
Copyright in software
Copyright protects original works of authorship, but does not extend to the ideas underlying the works. Copyright is the primary means through which authors of software protect their works from being misappropriated. Copyright vests instantly upon the creation of a work — all that is required of a software company is that it fixes its work in a tangible format such as a saved file — but a company will receive additional powers if it registers the work with the Copyright Office.
A crightsholder may seek damages, an injunction and the seizure and destruction of infringing goods. If a righsholder registers software with the Copyright Office within the first six months of creation or before infringement occurs, she may also seek statutory damages of $150k and attorneys’ fees.
Patent in software
Patent protects any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement therof, including software. State Street Bank & Trust CO. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998). To be granted a patent, an invention must be a novel, new development in at least one of its elements, and nonobvious to someone who is skilled in the industry at the time of development.
Trade secret in software
Under the Uniform Trade Secret Act, which has been adopted in 46 states, trade secret protection extends to information that (i) derives independent economic value from not being generally known or readily ascertainable and (ii) is the subject of reasonable efforts to maintain its secrecy. Trade secret protection is potentially broader the patent protection because it can cover matter that does not meet patent’s novelty requirements.
An owner may seek an injunction and damages from a party who misappropriates a trade secret. A plaintiff may also seek attorneys’ fees if a party has committed willful misappropriation.
A license is essentially a contract that grants a person permission to use content on the terms negotiated with the rightsholder. There are as many general types of software licenses as there are business models in the software industry. Our law firm advises software companies, hosting companies, and corporate end users on licensing issues including basic proprietary licenses, software as a service licenses, open source licenses, among others. Our law firm works with clients to ensure that their licensing relationships reflect their business and development needs.
Software as a Service
Software as a Service, or SaaS, is model through which a software company delivers content to its customers as a service over the internet. SaaS can be a cost-effective solution for software companies, allowing them to distribute a single version of its software on one type of platform. Implementing a SaaS business structure often involves a web of contracts including those between the hosting prover and the software company, and those between the hosting provider and the end user. The Law Office’s software law practice advises software companies, hosting providers, corporate end users on SaaS licenses and business structures.
Open source licensing
Many software companies are embracing open source distribution models as well as traditional proprietary models. There are many different types of license that fall under the umbrella of open source. Academic licenses, such as the
Berkeley Database License (BDL), compel a work into the public domain, often without restrictions. Other common open source licenses, such as the Global Public License (GPL), Mozilla Public License (MPL), Common Public License (CPL) and Open Software License (OSL), create a reciprocal bargain under which software may be distributed and modified, but any changes must also be distributed under the same conditions.
Our software practice advises clients on the selection of open source licenses, finding models that are appropriate for a company’s business structure. We consult with clients on how to ensure that they are compliant with the terms of an open source license and the enforcement of open source licenses.
Click-wrap and shrink-wrap licenses
Click-wrap licenses are contracts that are viewed online at the time of installation of software. Our law firm will consult with software companies on how to structure a click-wrap license, and the click-through process for entering the license, to ensure that the license is enforceable.
Shrink-wrap licenses are agreements that are placed inside a shrink-wrap package that also contains the software and documentation. The agreements usually provide that they are binding upon opening the packaging. The Law Office advises software companies that releases software under a shrink-wrap license on how to structure their agreements to ensure that the licenses are not covered under the Magnuson-Moss Act.
Cybersquatting, typesquatting and domain name disputes
Our law firm advises companies and individuals on domain name disputes. The Internet Corporation for Assigned Names and Numbers (ICANN) has established a process for the resolution of disputes over domain names, the Uniform Domain-Name Dispute Resolution Policy (UDRP). In situations where an opposing party has committed an abusive registration, such as cybersquatting or typesquatting, our law firm submits complaints to one of ICANN’s approved dispute resolution service provers. These dispute resolutions vendors offer an expedited, cost-effective system for addressing abusive registrations. A typical proceeding takes about two months.
The UDRP applies to many global top-level domains, including .aero, .biz, .com, .coop, .info, .museum, .name, .net and .org, and to a group of country-code top-level domains. If a party is successful in a UDRP Proceeding they may be awarded a cancellation or a transfer of an infringing domain name.