Information Technology

This note outlines the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977 (FCPA) and the anti-corruption regimes in which they operate. It focuses particularly on the practical implications of the differences between these two important pieces of legislation.

This Note addresses the legal and contractual considerations relating to privacy and security under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) in the context of cloud computing. The Note includes specific contract provisions that should be considered when negotiating or evaluating a contract with a cloud provider.

This Note discusses common cyber attack scenarios and sets out actions that companies can take to prevent or respond to attacks, including developing a cyber attack response plan. It also addresses the chief compliance officer's role in preventing and containing attacks and law enforcement referrals, and civil and criminal actions companies can pursue against attackers.

A template briefing for an in house lawyer to give all nonunionized employees regarding work-related e-mail and online risk. Employers with unionized employees, who are covered by collective bargaining agreements, must consider additional factors that are outside the scope of this briefing (see Practice Note, Employee Handbooks: Best Practices: Collective Bargaining Obligations). Click here to download in Microsoft Word.

This Note summarizes the key legal and commercial considerations and negotiating issues arising in relation to IT outsourcing agreements. These include the scope, purpose and context of outsourcings, transfers of intellectual property (IP), length of contract, scope and quality of services, pricing, service credits, indemnities, warranties, exclusivity, management, dispute escalation and resolution, limitation of liability, termination, and exit management.

This Note considers some of the key issues that arise in relation to a multi-jurisdictional outsourcing.  These issues include structure, choice of law and jurisdiction, tax-efficient structures, multiple suppliers, use of subcontractors, parent company guarantees, partnering agreements, EC merger regulations, procurement process, global transfer and service issues, local transfer and service issues, transfer of employees, and structure of agreements

This Note sets out the origins of open-source software, the ways in which it is licensed and the legal challenges that it presents.  It also gives guidance on how best to use it as a part of an organization's IT strategy.

This Note analyzes how service levels may be set and used in outsourcing transactions and the service credit schemes that may be employed to encourage good performance under an outsourcing contract.

This Note identifies the key terms and conditions commonly found in software escrow agreements and offers practical tips for structuring and negotiating the deposit, release and use of escrowed source code when representing licensors, licensees and other escrow depositors and beneficiaries. 

A discussion of key provisions in M&A agreements in the software industry in private acquisitions and public mergers. This Note includes links to recent deals summarized in PLC What's Market and will be updated quarterly. It also includes an expert Q&A with Parag Gheewala of Wilson Sonsini Goodrich & Rosati, discussing key considerations that often arise in M&A transactions in the software industry.

A policy for employers that wish to allow their employees to use their own smartphones, tablets or other mobile devices for work either while at the office or during nonworking hours. This policy can be incorporated into an employee handbook or used as a stand-alone policy document. This Standard Document applies only to private workplaces and is jurisdiction neutral. State or local law may impose additional or different requirements, but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.

An agreement for transferring ownership of certain domain names from a seller to a buyer. This Standard Document is drafted to be used as a stand-alone contract, and includes standard representations, warranties and other risk-allocation provisions typical in stand-alone domain name transactions. It is drafted in a manner that aims to be reasonable, and includes provisions that are common to negotiated agreements. This Standard Document has integrated notes with important explanations, alternative provisions and drafting and negotiating tips. The drafting notes also identify provisions that may be omitted if the domain name transfer agreement is being executed as an ancillary document to a larger transaction agreement, for example an asset purchase agreement or trademark sale or license.

An independent contractor agreement between an independent contractor (a self-employed individual) and a client company for consulting or other services. This Standard Document is drafted in favor of the client company. This Standard Document has integrated notes with important explanations and drafting tips.

A policy on the use of free and open source software (FOSS) by a company for its internal operations or products or services it develops for distribution to third parties. This policy can be used as a stand-alone policy document, incorporated by reference in a general company IT policy or included in an employee handbook in abbreviated form. It is jurisdiction neutral but must be tailored to suit the organization's managerial structure, resources and strategic goals. State or local law may impose additional or different requirements but this document will be useful and relevant to employers in every state. This Standard Document has integrated notes with important explanations and drafting tips.

An agreement for the assignment of intellectual property ownership rights in software and the assignee's grant back to the assignor of a license to use the software. It assumes that the assignment and license agreement is being entered into ancillary to a broader transaction. However, the document contains alternative provisions that allow for its use as at least the starting point for a standalone agreement. While drafted in favor of the assignee, this software assignment and grant-back license agreement aims to be reasonable and includes commonly negotiated provisions. This Standard Document has integrated notes with explanations and drafting tips.

An agreement for the license of unmodified software by the owner of the software to a company for use in its business, drafted with terms favorable to the licensor. This Standard Document has integrated notes with important explanatory drafting and negotiating tips.

An agreement for the provision of software support services to a company licensing the software, drafted with terms favorable to the provider. This Standard Document has integrated notes with important explanatory drafting and negotiating tips.

An agreement to perform support services for specified on-site software or remotely-accessed software services (SaaS) that provides credits to the software licensee or SaaS customer if the service provider fails to meet required service levels. This Standard Document has integrated notes with important explanatory drafting and negotiating tips and is presented in the form of a schedule to be attached to a main agreement. It can also be readily converted to a free-standing agreement.

An agreement for the procurement of website hosting services. This Standard Document is drafted to be used for hosting a single website. While drafted in favor of the customer, this website hosting agreement aims to be reasonable and includes commonly negotiated provisions. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

Sample clauses for use in a services agreement that involves the use, storage or other processing of personal information by the service provider. These clauses are drafted in favor of a customer, but aim to be reasonable. They may be incorporated into the services agreement or attached as a schedule to the agreement. These Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

An effect of licensor bankruptcy clause for use in certain types of intellectual property (IP) licenses and related supplementary agreements. This clause is typically included by and for the benefit of the licensee. It describes the subject matter of the agreement as "intellectual property" as defined by section 101(35A) of the Bankruptcy Code and sets out the parties' intent concerning their rights and obligations under section 365(n) of the Bankruptcy Code if the licensor enters into bankruptcy. The Standard Clause has integrated drafting notes with important explanations and drafting tips.

This checklist outlines the issues to address when implementing a document retention and disposal policy.

A Checklist of common provisions and negotiating points for a software service provider and business subscriber to consider when entering a Software as a Service (SaaS) agreement.

A Q&A guide to outsourcing in Ireland. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; contracting parties' remedies; dispute resolution; and the tax issues arising on an outsourcing.   To compare answers across multiple jurisdictions, visit the Outsourcing Country Q&A tool.   This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

On April 24, 2013, Practical Law Company and Matthew A. Karlyn of Cooley LLP presented Essentials of Software as a Service (SaaS) Contracts: What to Include and What to Leave Behind, a one hour webinar on the key negotiating points, provisions and pitfalls of SaaS agreements. You can access the recorded webinar here. Click here to download webinar slides.

A Q&A guide to outsourcing in Mexico. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. To compare answers across multiple jurisdictions, visit the Outsourcing Country Q&A tool. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

A recent European Court of Justice ruling has opened the way for the sale of "second-hand software" across Europe. Restrictions on the transferability of software originally licensed in a way that is regarded as a sale cannot now prevent a buyer acquiring the right to use the software. The decision has a number of implications for software licensors in particular, and creates opportunities for licensees.

This tool enables subscribers to search the Country Q&A in the PLC Outsourcing multi-jurisdictional guide by question and jurisdiction. Simply select the questions and the jurisdictions that you are interested in and click the "submit" button. Please note that the law stated dates for each jurisdiction covered may not be the same. To check the law stated dates for each jurisdiction, please visit the individual article.

Benchmarking continues to be an emotive and, at times, difficult issue for customer and supplier in the outsourcing process, both during contract negotiations and when it comes to implementation. This article identifies the key issues and concerns that should be considered and addressed in the benchmark terms of the outsourcing contract, and suggests approaches that can be taken to achieve a more realistic and balanced benchmark process. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

Due to its financial attractiveness, people skills and availability and business environment, India is the most popular destination for the provision of offshore information technology outsourcing (ITO), business process outsourcing (BPO) and voice-based outsourcing services. Because of India's pre-eminence as an offshoring destination, this article examines India as an outsourcing hub in ITO, BPO and voice-based services, covering: India's offshore outsourcing advantage. Risks and possible disadvantages of outsourcing to India. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

A Q&A guide to outsourcing in Australia. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. To compare answers across multiple jurisdictions, visit the Outsourcing Country Q&A tool. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

A Q&A guide to outsourcing in Brazil. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. To compare answers across multiple jurisdictions, visit the Outsourcing Country Q&A tool. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

A Q&A guide to outsourcing in China. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. To compare answers across multiple jurisdictions, visit the Outsourcing Country Q&A tool. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

A Q&A guide to outsourcing in France. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. To compare answers across multiple jurisdictions, visit the Outsourcing Country Q&A tool. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcingmjg.

A Q&A guide to outsourcing in India. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. To compare answers across multiple jurisdictions, visit the Outsourcing Country Q&A tool. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

A Q&A guide to outsourcing in Japan. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. To compare answers across multiple jurisdictions, visit the Outsourcing Country Q&A tool. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

A Q&A guide to outsourcing in the Russian Federation. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. To compare answers across multiple jurisdictions, visit the Outsourcing Country Q&A tool. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

A Q&A guide to outsourcing in Switzerland. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. To compare answers across multiple jurisdictions, visit the Outsourcing Country Q&A tool. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

A Q&A guide to outsourcing in the UK (England and Wales). This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. To compare answers across multiple jurisdictions, visit the Outsourcing Country Q&A tool. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

This table summarises regulatory notification and approval of outsourcing transactions. This table is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcing-mjg.

A Q&A guide to outsourcing in the Czech Republic. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. For a full list of recommended outsourcing law firms and lawyers in the Czech Republic, please visit PLC Which lawyer? This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcinghandbook.

A Q&A guide to outsourcing in Hungary. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. For a full list of recommended outsourcing law firms and lawyers in Hungary, please visit PLC Which lawyer? This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcinghandbook.

A Q&A guide to outsourcing in Norway. This Q&A guide gives a high-level overview of legal and regulatory requirements on different types of outsourcing; commonly used legal structures; procurement processes; and formalities required for transferring or leasing assets. The article also contains a guide to transferring employees; structuring employee arrangements (including any notice, information and consultation obligations); and calculating redundancy pay. It also covers data protection issues; customer remedies and protections; and the tax issues arising on an outsourcing. For a full list of recommended outsourcing law firms and lawyers in Norway, please visit PLC Which lawyer? This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents, please visit www.practicallaw.com/outsourcinghandbook.

More and more companies have begun to source related functions to multiple providers. This practice, know as "multi-sourcing", or "best-in-breed sourcing", has become popular with companies in their second or third generation of outsourcing. This article describes single and multi-sourcing models, looking at the advantages and disadvantages of each, reviews governance issues, describes methods of risk mitigation, and explores the impact of cloud computing on outsourcing. This article is part of the PLC multi-jurisdictional guide to outsourcing. For a full list of contents visit www.practicallaw.com/outsourcinghandbook.

This Article discusses the cloud computing phenomenon and its potential benefits, and provides practical tips to avoid and minimize key legal risks associated with its use.

Data protection compliance is a topical issue that increasingly attracts the attention of legislators and regulators worldwide. In this chapter, the authors provide an overview of the most important data protection elements in outsourcing transactions. This article is part of the PLC multi-jurisdictional guide to Outsourcing. For a full list of contents visit www.practicallaw.com/outsourcinghandbook.

A Q&A guide to outsourcing in Portugal. This Q&A is part of the PLC multi-jurisdictional guide to Outsourcing. For a full list of jurisdictional Q&As visit www.practicallaw.com/outsourcinghandbook.

A Q&A guide to outsourcing in The Netherlands. This Q&A is part of the PLC multi-jurisdictional guide to Outsourcing. For a full list of jurisdictional Q&As visit www.practicallaw.com/outsourcinghandbook.

This article discusses the possibility that, if an OS solution or platform has considerable market power or is a de facto standard in a relevant market, the OS licence's terms (requiring redistribution free of charge) and/or the GPL's Copyleft provisions might be found to be exclusionary or unfair to a non-OS operator who is an intellectual property (IP) right holder. The article focuses specifically on the arguments surrounding unfair and/or exclusionary terms of access to a market, by looking at the way in which this issue has previously been assessed in the context of standard setting.

A discussion of the unique characteristics that distinguish Software as a Service (SaaS) from on-site software licensing arrangements and the key technical and legal issues that organizations should consider when entering into a SaaS agreement.

A discussion of ownership allocation for intellectual property, especially patents, developed during the term of a joint development agreement. This Legal Update includes links to relevant resources that examine this issue.

A discussion of important considerations for negotiating software license and software as a service (SaaS) agreements, including links to resources providing key bankruptcy and escrow provisions protecting the licensee or SaaS customer against a loss of software services arising from the bankruptcy of the software's licensor or SaaS provider.

The FTC issued a staff report which highlights key issues consumers and companies face as they adopt mobile payment services.

The Payment Card Industry (PCI) Security Standards Council (SSC) released a supplement to the payment card industry data security standards (PCI-DSS) addressing the use of cloud technologies and considerations for PCI-DSS controls in cloud computing environments.

The European Council has published a comparative table of the Data Protection Regulation and the Data Protection Directive.

On 9 October 2012 the Serious Fraud Office issued revised statements of policy on facilitation payments, business expenditure (hospitality and gifts) and self-reporting.

In Karl Knauz Motors, Inc., the National Labor Relations Board (NLRB) upheld the termination of an employee for Facebook comments that were not protected under Section 7 of the National Labor Relations Act (NLRA). The NLRB also held that an employer's rule requiring employees to treat others with courtesy and to refrain from using language that is disrespectful or harmful to the employer's image and reputation unlawfully restricted Section 7 activity.

In WEC Carolina Energy Solutions v. Miller, the US Court of Appeals for the Fourth Circuit held that an employer failed to state a claim against a former employee under the Computer Fraud and Abuse Act (CFAA) where the employee allegedly used confidential information to help the employer's competitor. The employer authorized the employee to access the information, but argued that the employee's unauthorized use of the information violated the CFAA. The Fourth Circuit held that the CFAA only prohibits unauthorized access to information stored on a computer.   

In Oracle America, Inc. v. Google Inc., the US District Court for the Northern District of California, holding that the command structure, sequence and organization (including headers and definitions) of 37 of Oracle's Java API packages were not copyrightable, dismissed Oracle's copyright infringement claim. The court's decision in this case of first impression is noteworthy for highlighting the boundaries between patent and copyright and marking the functionality-based limits of copyright protection for software.

On March 26, 2012, the Federal Trade Commission (FTC) issued its final report on consumer privacy protection with recommendations for best privacy practices for companies. The FTC's report, Protecting Consumer Privacy in an Era of Rapid Change, also recommends that Congress consider enacting legislation addressing general privacy, data security and breach notification, and data brokers' collection and use of consumer information.

On February 22, 2012, the California Attorney General announced an agreement with six leading operators of mobile application platforms to strengthen privacy protections for consumers who use mobile applications.

In Aqua Connect, Inc. v. Code Rebel LLC, the US District Court for the Central District of California dismissed a remote-access software company's claim that one of its customers violated the California Trade Secrets Act (CTSA) when it downloaded and reverse engineered a trial version of the company's software. The court emphasized that CTSA's definition of "improper means" trade secret misappropriation specifically states that reverse engineering alone is not an improper means of acquiring trade secret information. The court rejected the software company's argument that the prohibition on reverse engineering in its End User License Agreement (EULA) made the activity an improper means of obtaining the trade secret information. The court also rejected the software company's argument that its EULA created a duty for its customers to maintain the secrecy of company trade secrets.

In Adobe Systems Inc. v. Hoops Enterprise LLC,  the US District Court for the Northern District of California held that Adobe's distribution of certain software to original equipment manufacturers (OEMs) was a license, not a sale of the software. Relying on Vernor v. Autodesk, the District Court found that the copyright first sale doctrine was unavailable as a defense to Adobe's claims of copyright infringement against third parties who subsequently resold the software without authorization.

A PLC Commercial "Legal FAQs" article about the Bribery Act 2010, which comes into force on 1 July 2011.  For details about PLC's materials on the Bribery Act, see Practice note, Bribery Act 2010: toolkit.

The ECJ has held that the copyright available to computer programs under the Software Directive (2009/24/EC) does not protect the functionality of a computer program, its programming language, or its data file format. (SAS Institute Inc v World Programming Ltd, Case C-406/10, 2 May 2012.) (Free access.)