Recent Cases: Federal Holding Helps Protect Software Developers

Recent Cases: Federal Holding Helps Protect Software Developers

Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate Candidate, May 2013)

As a software engineer turned law student, I know first-hand how difficult it can be to protect your software in the marketplace.  By its nature, software is difficult to protect, but a recent Federal Court Ruling provides new teeth to the patentability of software.

The case is Ultramercial, LLC v. Hulu, LLC, 657 F.3d 1323 and the new teeth come in the form of a new two prong test aimed at helping developers protect their software.  This case hinged on the principle of the patentable subject matter test, which is essentially serves a screening function in patent law.  Traditionally, software has been analyzed under a “machine-or-transformation” Under that test, a computer program was patentable if and only if “(1) it [was] tied to a particular machine or apparatus, or (2) it transform[ed] a particular article into a different state or thing.”  The leading case on this subject has been The Supreme Court case, Bilski v. Kappos

Ultramercial, put took Bilski’s to a new level improving greater patentability of computer programs by identifying and applying two new factors: (1) the programs’ requiring complex computer programming and (2) the programs’ use of the internet and of a cybermarket environment.  This development stands to help software developers secure patentability while giving them greater leverage against patent infringement. 

What we haven’t seen in the case law to date is how this new test will be applied to the mobile applications software environment.  Nonetheless, there are several apps that I can think of that fall perfectly under this new umbrella of software patentability.  This comes as great news as the software industry has recently taken aim on improving intellectual property positions. 

Ref:

Harvard Law Review, Vol. 125:2167, PATENT LAW — PATENTABLE SUBJECT MATTER — FEDERAL CIRCUIT APPLIES NEW FACTORS IN DECIDING PATENTABILITY OF A COMPUTER PROGRAM. — Ultramercial, LLC v. Hulu, LLC, 657 F.3d 1323   

#eDiscovery

@IntleDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while working nearly ten years in executive leadership positions within the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery        

Libor Scandal Provokes Return to Prime Rate

Libor Scandal Provokes Return to Prime Rate

Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate Candidate, May 2013)

The global banking industry has been rocked by the latest LIBOR scandal.  News of this scandal broke when Barclays Bank was fined with a $454 Million civil settlement reached with various international enforcement agencies.  Estimates currently suggest that the LIBOR scandal could cost banks upwards of $22 Billion (Source: http://www.cnbc.com/id/48169576).  These developments have the international financial industry reconsidering a return to the United States Prime Rate.

The global banking industry has steadily migrated away from the Prime Rate as US interest rates continue to be at year-over-year record lows.  The LIBOR (London InterBank Offer Rate) emerged as a global standard, yet its uncertainty has the global banking industry considering a return to the assurance of the US Prime Rate.

Why is Prime Rate better?  Rather than a composite index comprised by reporting banks, the US Prime Rate is calculated very simply.  Simply stated the Prime Rate is determined by adding 300 basis points or 3.00 percentage points to the Federal funds target rate. As a result if the Federal funds target rate is 0.25%, then the U.S. Prime Rate will be 3.25%.  In comparison the LIBOR is the rate that banks lend to each other and as the latest scandal has unveiled, its certainty is anything by assuring.

In recent years, Prime Rate has been steadily replaced by the LIBOR by global banks operating as MNE’s (Multinational Enterprises).  As a result the banks have enjoyed more flexibility towards profitability, yet it has come at the cost of high risk.  This risk is confirmed by reports of losses surging into the billions.  These losses have many bankers and shareholders alike seeking the reassurance of the US Prime Rate.

#CNBC

@IntleDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while he tenured ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery        

Mobile Phones and International eDiscovery: Let’s Get mESI

Mobile Phones and International eDiscovery: Let’s Get mESI

Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate Candidate, May 2013)

As a software engineer turned law student, I spent countless hours in my former life embedded in the Software Development Lifecycle (SDLC) creating mobile software.  My specialization as a mobile software developer was in mobile security software, hence my company MyMobiSafe.com.  Interestingly as C-level executives increasingly conduct their global business via mobile devices (cell phones, tablets, etc), this is opening new doors of consideration with regard to International Electronic Discovery. 

Part of what makes international business law so interesting is the classic notion that “the deal” follows the law of the nation where the agreement was reached.  Of course this also highlights the importance of forum selection clauses in any international business contract, but we will save that for another day.  Much more interesting today are the global transactions being handled via mobile devices and the implications this may have on International Electronic Discovery.  Let’s focus on two key areas for now: Preservation and Extraction. 

Preservation: Under Zubulake, every American company (or multinational company with an American conglomerate) has a legal duty to preserve electronically stored information (ESI).  This gets more complex as the bulk of preservation today is solely focused on the preservation of computer-generated ESI rather than the ESI produced by mobile devices.  High profile international legal issues such as the recent Barclays fiasco demonstrate that ESI is generated all over the world and often from the palm of a C-level executive’s iPhone.  Now is a great time for businesses to begin shifting their preservation efforts to mobile forms of ESI.  One tool to better capture and preserve this data is via the cloud and via the various cloud-based backup technologies (i.e. iCloud for your iPhone).       

Extraction: Once the data is preserved the next question becomes how we extract it in such a way that it doesn’t compromise its native format.  There are a growing number of tools available for extraction of mobile ESI (mESI).  It is important to seek a software that complements your current operating environment without costing you too much.  As noted there are a growing number of tools available, but one that stands out today is the Nuix Investigator suite.  This solution particularly allows you to search and analyze data across multiple devices with unmatched speed. 

By virtue of the internet, any business can become an international business overnight.  The nature of business today is global and businesses as well as attorney’s must stay connected with the technologies that move business forward.  From a technology perspective we are shifting from a computer-based environment to one that integrates multiple devices from handsets to tablets.  mESI is a new frontier in eDiscovery, yet it is one that plays a vital role in nearly every business transaction today.  Whether you are a small business or working on behalf of an MNE, take the strides today to reassess the current eDiscovery strategy to incorporate the preservation of mESI.

#eDiscovery

@IntleDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while he tenured ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery        

International eDiscovery: Barclays Gearing up to be Battle Royale

International eDiscovery: Barclays Gearing up to be Battle Royale

Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate Candidate, May 2013)

In a new twist to what is likely to become the major international eDiscovery case of the century, Barclays CEO, Bob Diamond announced Tuesday that he will be resigning from his post.  The embattled CEO is at the center of the Libor trading scandal that has rocked the international financial markets.

Barclay’s previously agreed to pay the Commodity Futures Trading Commission (CFTC), the U.S. Department of Justice (DOJ) and the U.K.'s Financial Service Authority (FSA) a total of $454 Million.  In an interesting international eDiscovery development, investigators uncovered a myriad of smoking gun emails during this investigation which revealed a conspiracy stretching from the banks trading desks to top senior management.  These emails reportedly demonstrate barking orders from the trading desks and willful compliance by the managers involved.  This scheme accused Barclay’s of attempting to manipulate the bank's true funding costs, which are key in setting short-term interest rates used in approximately $350 trillion of financial market contracts.

In a new development this week Bob Diamond will face-off with British lawmakers on Wednesday, likely dragging the Bank of England, government, and other international banks deeper into the scandal.  International electronic discovery is the pursuit of digitally native filetypes for use in matters of litigation that transcends international borders.  Barclay’s operates as a Multinational Enterprise (MNE) and is subject to a global standard of Electronically Stored Information (ESI) preservation.  Multination Enterprises (MNE) are a special kind of corporation that combines multiple entities of incorporation located throughout the global marketplace and most often include at least one American corporation in the business unit hierarchy.  MNE’s are especially subject to a diverse global framework of laws, but are equally subject to a litany of international eDiscovery practices. 

#eDiscovery

@IntleDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while he tenured ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery          

International eDiscovery: United Technologies Corporation Pays Big Fines for Breaching Blocking Statute.

International eDiscovery: United Technologies Corporation Pays Big Fines for Breaching Blocking Statute.

Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate Candidate, May 2013)

Today from Bridgeport, Connecticut US-based United Technologies Corporations (UTC) plead guilty to crimes related to the illegal export of software that U.S. officials say was used by China to develop the country's first modern military attack helicopter. 

As a matter if International Electronic Discovery (eDiscovery), blocking statutes are laws enacted in one jurisdiction to obstruct the local (extra jurisdictional) application of a law enacted from another jurisdiction.  The nature of blocking statues is that they prevent the disclosure of certain kinds of information from being leaked from its country of origin.  Many countries apply these statutes (including America) and most countries use national security as their legislative intent in passing such laws.

Blocking statutes as applied in this case make sharing certain information a criminal act.  Here UTC violated a U.S. blocking statute (likely a violation of the U.S Commerce Control List – 15 CFR Part 774).  One of the great hurdles of International eDiscovery stems from production requests that may include such confidential information. 

As demonstrated by the more than $75 million in fines in connection with the export violations (and for providing misleading information to the U.S. government), violations of blocking statutes can carry stiff penalties.  Counsel for technology companies should be especially cautious with regard to export contracts and should consider an Export Addendum when drafting agreements.  This case arose from the international transaction between UTC and the Chinese government which subjects this cause to extensive International eDiscovery.  

#eDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while he tenured ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery          

Barclay’s Bank Feels the Sting of International eDiscovery

Barclay’s Bank Feels the Sting of International eDiscovery

Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate Candidate 2013)

News broke today about the $454 Million civil settlement that Barclay’s Bank reached with various international enforcement agencies.  In this settlement, Barclay’s has agreed to pay regulators around the world $454 Million to settle a probe of its manipulation of key benchmark rates known as Libor and Euribor.  This international investigation exposed a scheme that seems to stretch from the banks trading desks to senior management team.

In their settlement, Barclay’s has agreed to pay the Commodity Futures Trading Commission (CFTC), the U.S. Department of Justice (DOJ) and the U.K.'s Financial Service Authority (FSA) a total of $454 Million.  In an interesting international eDiscovery development, investigators uncovered a myriad of smoking gun emails during this investigation which revealed a conspiracy stretching from the banks trading desks to top senior management.  These emails reportedly demonstrate barking orders from the trading desks and willful compliance by the managers involved.  This scheme accused Barclay’s of attempting to manipulate the bank's true funding costs, which are key in setting short-term interest rates used in approximately $350 trillion of financial market contracts.

The joint international eDiscovery effort uncovered thousands of emails and other forms of Electronically Stored Information (ESI).  International electronic discovery is the pursuit of digitally native filetypes for use in matters of litigation that transcends international borders.  Barclay’s operates as a Multinational Enterprise (MNE) and is subject to a global standard of ESI preservation.  Multination Enterprises (MNE) are a special kind of corporation that combines multiple entities of incorporation located throughout the global marketplace and most often include at least one American corporation in the business unit hierarchy.  MNE’s are especially subject to a diverse global framework of laws, but are equally subject to a litany of international eDiscovery practices.  Through their corporate structure MNE’s are organized in such a way that generally affords them access to the most diverse conflict of laws variability, yet puts them at constant risk of defending against foreign claims.

In the midst of a global financial crisis, this news is sure to shake the confidence in the global banking industry, yet it highlights the ability of international financial regulatory agencies in identifying and resolving real-time issues.  This case stands as a bellwether of international eDiscovery and puts other MNE’s on notice with regard to the stiff penalties they may face when their activities transcend national borders.

#eDiscovery

@IntleDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while he tenured ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.          

      

Major Changes in Florida Legal Practice: Email Service and eFiling

Major Changes in Florida Legal Practice: Email Service and eFiling

Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate Candidate 2013)

This week Florida attorney’s received a major technology upgrade.  On June 21, 2012, The Florida Supreme Court released two major opinions creating the Email Service Rule and mandatory eFiling.  These rules come at a time when courts throughout the nation are trailblazing into digital frontiers as the preferred medium of practicing law. 

For many practicing Florida attorney’s this means big changes and for any non-technology savvy attorney’s these opinions command serious attention.  Here is a quick overview of the opinions:

Email Service Rule:  First, this opinion Florida Rule of Judicial Administration 2.516 (Service of Pleadings and Documents), shall implement mandatory e-mail service for all cases in Florida.  As the opinion notes, “…new rule 2.516 provides that all documents required or permitted to be served on another party must be served by e-mail. Under subdivision (b)(1) (Service by Electronic Mail (e-mail), upon appearing in a proceeding a lawyer must designate a primary e-mail address, and may designate up to two secondary e-mail addresses, for receiving service. Thereafter, service on the lawyer must be made by e-mail.”  Currently however pro se litigants are not required to use e-mail service.

Note: This change impacts ALL new cases in Florida and shall be effective July 1, 2012.  E-mail service will be mandatory for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, before electronic filing is mandatory. E-mail service will be mandatory for attorneys practicing in the criminal, traffic, and juvenile divisions of the trial courts on the same date that electronic filing also becomes mandatory for this group.

Mandatory eFiling: Second, this new opinion will require attorneys to file documents with the trial and appellate courts by electronic transmission and will operate in tandem with the new mandatory e-mail service requirements for pleadings and documents.  The proposed amendments will also require the clerks’ offices to maintain electronic court records, to convert paper documents to electronic documents, and to electronically transmit the record on appeal.

Note: The Court has adopted an implementation schedule to phase in these requirements in each division of the trial courts and in the appellate courts based on input from all affected groups.  This opinion especially acknowledges the limited budget resources of the public defenders, state attorneys, and regional counsel however, encourages attorneys and clerks throughout Florida to take notice of the new electronic filing requirements adopted and to begin the process of updating current practices to conform to these requirements.

In conclusion, the days of paper-based law suits are numbered in the State of Florida.  These opinions will have widespread impact on bringing the practice of law into the digital era.  All practicing Florida attorneys are encouraged to read the opinions (links above) as these changes are fast approaching.

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.          

What is Electronic Discovery?

What is E-Discovery? 

Let me start this topic by sharing a passage from my upcoming Whitepaper, Electronic Discovery and the Data Center Dilemma

“What is electronic discovery?  According to PC Magazine, electronic discovery (E-Discovery) is, “Relevant evidence in a court case that resides in electronic form. It includes all types of electronic files, including Web pages, e-mail correspondence, as well as database, word processing and spreadsheet files.” (PCMag.com, 2012)  While this is a great working definition, it should be expanded to include the notion that any electronic medium is subject to discovery.” 

In short, electronic discovery (e-Discovery) takes the traditions of legal discovery and propels them forward to meet today’s increasingly technical environment.  Everything from emails to financial statement and anything in between are subject to e-Discovery.  I like to say, if it is digital, then it is discoverable. 

Welcome to TechieBizLaw!

Welcome to TechieBizLaw!  This will be my new sounding board for anything tech * biz * law.  Let’s get something straight from the beginning, I am a law STUDENT, not an attorney!  Anything you read on this website is merely opinion and should never be taken as legal advice.  If you need an attorney, contact your local bar as I do not refer attorneys from my website.