California and Europe Lead the Way on Data Privacy – More States to Follow

You may have heard that the California Consumer Privacy Act (CCPA) went into effect on January 1, 2020.  The CCPA is the first major attempt by a state government in the United States to regulate the use of consumer personal information.  Following California’s lead, other states have started considering similar data privacy laws.  The CCPA has been compared to the European Union General Data Protection Regulation (GDPR) that became effective in 2018.  While the CCPA has some similarities to the GDPR, significant differences between the two laws mean that compliance with one of the laws will not necessarily equate compliance with the other.  It is important for businesses subject to either or both of those laws to be aware of what is needed to be in compliance.  Businesses not subject to California and European data privacy laws should nevertheless pay attention to data privacy concerns because it is likely similar laws will be passed throughout the country over the coming years.  Legislation is pending in several state legislatures, including Illinois, with similarities to the CCPA and GDPR. 

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Beware of Work-for-Hire Nuances

The term “work-for-hire” is often loosely used to refer to an agreement with an author, musician, or other independent contractor to create a copyrighted work.  “Work-for-hire” agreements are routinely entered for the purpose of vesting ownership of the work with the party paying for the work.  The term “work-for-hire” has a precise meaning under the U.S. Copyright Act, and if care is not used to properly draft the agreement, the partying paying for the work may not legally own all rights to the work. 

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Act Promptly to Respond to a Data Breach

If you own or operate a business or non-profit organization, then it is likely not a matter of if, but when, you will experience a data breach.  News stories proliferate of high-profile data breaches involving sensitive data of millions of people.  A recent data breach of a major online fundraising platform has had far-ranging implications, affecting countless individuals, businesses, and organizations throughout the world.  The costs to investigate the breach, notify all affected parties, and work with those parties to address the breach must have been staggering.  The same data breach laws that apply to large, multi-national IT providers also apply to small businesses and non-profit organizations.  If you experience a data breach, it is imperative that you act quickly to address the breach and comply with any applicable data breach notification laws.        

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Supreme Court to Decide Epic 10-Year Copyright Infringement Case

UPDATE: Oral arguments are scheduled for October 7, 2020. Due to COVID-19, oral arguments will be conducted by phone. A live feed of the argument will be available at c-span.org and a recording will later be posted to the Supreme Court’s website. A decision is expected by the end of the Court term in June 2021.

The “copyright lawsuit of the decade” is finally coming to a conclusion, as the U.S. Supreme Court granted certiorari to Google LLC v. Oracle America, Inc.  The Court’s decision is immensely important to the computer software industry since the Court will decide if a software application programming interface (API) is protected by copyright. The Court may, for the first time in 25 years, address the copyright fair use doctrine by deciding if use of an API is a fair use. This case has a long and convoluted history, but it started in 2010 when Oracle sued Google, alleging that Google committed patent and copyright infringement by using Java application programming interface declarations in its Android platform. The patent claims were resolved, leaving the copyright infringement claim. After several rounds of decisions, the U.S. Court of Appeals for the Federal Circuit held that APIs were protected by copyright and that Google’s use of them did not constitute fair use. Google appealed to the Supreme Court seeking reversal of those decisions.

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EU Data Protection Law to Impact Charitable Donations

Do you have customers in Europe? Are you a charity that receives donations from EU citizens? Do you send your newsletter to people in Europe? If any of these apply to you, you should be aware of changes to European privacy laws that became effective on May 18, 2018 through the  European Union General Data Protection Regulation (GDPR).  The GDPR significantly broadens the geographic scope of European privacy laws to include individuals and businesses outside of the EU. Continue reading “EU Data Protection Law to Impact Charitable Donations”

Developing Open Source Software Not an Exempt Purpose

You may be familiar with open source software. If you are, you know it is software people can modify and share because its design is publicly accessible. Would efforts to develop open source software qualify as an exempt purpose under tax law? It’s not commercial and it benefits the public, right?

Not according to the IRS. Continue reading “Developing Open Source Software Not an Exempt Purpose”

New Top-Level Domains: Opportunity or Headache?

A recent explosion of new domain names could profoundly change the digital marketing strategies of businesses and organizations. The regulatory body that coordinates domain names is known as the Internet Corporation for Assigned Numbers and Names (ICANN). ICANN has approved hundreds of new generic top-level domain names (gTLDs) that are starting to become available to the public. Some of the more well-known gTLDs that have been used for many years include .com, .org, or .edu. Examples of new gTLDs that have been approved for release are .blog, .business, .charity, .church, .shop, and .software. Continue reading “New Top-Level Domains: Opportunity or Headache?”

Organizations Should Create Appropriate Social Media Policies

The rapid growth in popularity of social media has left many business and nonprofit organizations unprepared to handle issues presented by this new form of communication.   Existing policies may not be adequate to address the novel issues involved.  We advise companies and organizations that use social media to implement social media policies that will address these concerns. Continue reading “Organizations Should Create Appropriate Social Media Policies”

Look Before You Click: Why You Should Read Open Source Software Licenses

The proliferation of open source software has significantly changed the legal framework of the software development field.  Software developers who use open source software in their products should be aware of these issues and ensure that they comply with the requirements of open source licenses.  Inattention to open source licenses could cause developers to disclose their proprietary source code to the public or expose them to liability for copyright infringement.  Complying with open source licenses has become an important issue because courts will likely enforce the terms of the licenses.  In a landmark case for open source software licenses, the U.S. Court of Appeals for the Federal Circuit held that an open source software license was enforceable.  Jacobsen v. Katzer, 535 F.3d 1373, 1381-2 (Fed. Cir. 2008).  The court further held that violation of an open source license could constitute copyright infringement.  During the early years of open source software licensing, it was unclear if the licenses would be legally enforceable.  The Jacobsen case resolves this doubt.  In response to Jacobsen, software developers should exercise great care in using and complying with open source licenses. Continue reading “Look Before You Click: Why You Should Read Open Source Software Licenses”

Sales Tax Liability and Voluntary Disclosures

It is a common misconception that online sales are not subject to state sales taxes.  However, states may impose sales taxes on any sale, online or traditional, if the seller has nexus with the state.  Nexus can be a difficult legal doctrine to apply, so sellers should obtain a legal opinion to determine if they are subject to a state’s sales taxes.  Nexus usually entails a physical presence in the state, which can be as insignificant as sending independent sales representatives to the state. Continue reading “Sales Tax Liability and Voluntary Disclosures”