“Steve Wozniak will soon face the courts for a copyright lawsuit due to a technology school venture initially called ‘Woz Institute of Technology’ but was scrapped and did not push through,” reports Isaiah Richard in Tech Times.

“Instead of being board members or chairpersons of what is supposed to be a technology school that would focus on engineering and pushing forth the development of modern gadgets, both parties are square one in court. According to Business Insider, Wozniak is facing the claims of allegedly “stealing” the idea to a tech school despite having the name ‘Woz’ to it.”

Read the article.

“Ten years ago, Oracle argued that Google had infringed Oracle’s copyright, by copying the ‘structure, sequence, and organization’ of 37 Java application programming interfaces (APIs) into Android. Google replied that an API is like an alphabet or a grammar. They’re the fundamental elements used to create programs. Now, at long last, the Supreme Court of the United States (SCOTUS) has concluded what programmers had known all along: APIs can’t be strictly copyrighted. Fair use must play its part,” reports Steven J. Vaughan-Nichols for Between the Lines in ZD Net.

“Ironically, in the 90s, both Oracle and Sun, Java’s original owner, argued that software APIs shouldn’t be covered by copyright. That was then. This is now. For the last decade Oracle has been desperately trying to monetize its failed Sun purchase by attempting to squeeze $9-billion dollars out of Google’s use of Java APIs in Android.”

“After a long-delayed hearing on Oracle v. Google in October 2020, SCOTUS ruled on April 5 that Google could legally use Oracle’s Java API code when building Android.”

Read the article.

A federal judge has found that Public.Resource.Org infringed upon the copyright of educational standards developed by the American Educational Research Association (AERA), the American Psychological Association (APA) and the National Council on Measurement in Education (NCME).

Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia found that standards developed by the three organizations retained their copyright even when incorporated by reference into government regulation, and ruled that Public Resource is liable for copyright infringement, according to a release from Quarles & Brady LLP, the firm representing the agencies in the litigation.

The release continues:

Since the early 1950s, a volunteer committee of experts chosen, sponsored and overseen by the AERA, APA and NCME, have developed and published the Standards for Educational and Psychological Testing. The result of enormous deliberation, vetting and authoritative consensus, these standards represent a set of best practices in the development, administration and scoring of tests that are widely relied upon by educational and psychological testing professions across the country. In mid-2012, however, after the standards were incorporated by reference into state and federal education agency regulations, Public Resource posted an unauthorized copy of the entire 1999 edition to the Internet, taking the position that the standards had become law and therefore lost their copyright protection. When Public Resource refused to remove the copy, AERA, APA and NCME brought suit for copyright infringement. With the court’s ruling, the creative efforts, time, and resources expended by voluntary standards development organizations like AERA, APA and NCME are secured from unauthorized replication by copyright protection, regardless of whether state or federal agencies choose to incorporate the resulting standards by reference into agency regulations.

“We are gratified that the court protected the standards, a valuable resource of the testing professions, from the brazen actions of a deliberate copyist,” said AERA Executive Director Felice Levine.

In the view of APA Interim CEO Cynthia D. Belar, PhD, “protracted litigation was not our first choice, as nonprofit organizations focused on the contributions of our disciplines to the public welfare. Public Resource’s refusal to stop harming the value of our publication left us with no alternative.”

NCME President Mark Wilson said that “the testing professions rely on the standards as the premier source of guidance for the work we do. We appreciate that the court saw the value in protecting the standards from infringement.”

About AERA, APA, and NCME

AERA is the major national scientific society for research on education and learning. AERA’s mission is to advance knowledge about education, to encourage scholarly inquiry related to education, and to promote the use of research to improve education and serve the public good.

APA is the largest scientific and professional organization representing psychology in the United States. APA’s membership includes nearly 115,700 researchers, educators, clinicians, consultants and students. Through its divisions in 54 subfields of psychology and affiliations with 60 state, territorial and Canadian provincial associations, APA works to advance the creation, communication and application of psychological knowledge to benefit society and improve people’s lives.

NCME is a professional organization for individuals involved in assessment, evaluation, testing and other aspects of educational measurement. NCME’s members are involved in the construction and use of standardized tests; new forms of assessment, including performance-based assessment; program design; and program evaluation. NCME’s members include university faculty; test developers; state and federal testing and research directors; professional evaluators; testing specialists in business, industry, education, community programs, and other professions; licensure, certification, and credentialing professionals; graduate students from educational, psychological, and other measurement programs; and others involved in testing issues and practices.

AERA. APA and NCME were represented in the litigation by Jonathan Hudis, Nikia Gray and Jonathan Labukas of the Washington, D.C. office of Quarles & Brady LLP. For more than 120 years, Quarles & Brady has provided quality legal services to a wide range of industries on a national stage. The firm is a multidisciplinary AmLaw 200 legal services provider with 10 offices across the United States.

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By Keli Swan
Scott & Scott, LLP

In an effort to enforce the copyrights of its members, Business|The Software Alliance (BSA) offers the potential for monetary rewards to any informant that shares information related to software copyright infringement against a company. Many of our clients are facing audits because an informant has turned them in.

Even if a company is able to demonstrate that its software is properly licensed, it is difficult to hold the informant accountable for the time and expense incurred as a result of the audit because the BSA protects the identity of its informants.

There are a few tips on how to deal with disgruntled former employees seeking revenge through a BSA reward.

1) Prevention. In many instances prevention simply is not possible because a company learns of the potential informant at the same time it receives an audit demand from the BSA. However, if you have not yet received an audit request, a company should manage its network to protect against potential claims.

Lock down the network. Limiting the individuals who are able to access, download, or install software, scanning tools or any other information to or from the network is an essential safeguard against creating potential copyright infringement claims. First, by preventing downloads, you are able to control what is installed on the network and limit it to only licensed software. Second, you can prevent any potential informants from stealing raw data from the network and delivering it to the BSA in an effort to obtain a reward. Third, limiting access to administrators ensures that an employee cannot create a compliance problem on his or her way out in an effort to damage the company.

2) Recourse. Sometimes a company may have a suspicion about who the informant is based on the timing of an acrimonious departure of a former employee and the initial audit letter. However, the BSA will not release the name of the individual. Even in litigation, it could be difficult to obtain the informant’s identity. However, if the BSA relied on specific information relating to its claims, it may be forced to identify the informant. The question remains: what is a company’s recourse?

Employee Non-disclosure Agreement. If the informant signed a non-disclosure agreement, it may be possible to pursue the individual for breaching that agreement, depending on the language of the agreement. However, even if this action is ultimately successful, a company should be mindful of the cardinal rule of litigation: never sue a poor person. Aside from the satisfaction of holding an individual accountable, the company may never receive damages or attorney’s fees.

Request Informant Not Be Rewarded. Once an audit is resolved, if a company believes that the informant may have been directly responsible for intentionally or negligently creating the compliance gap, the company should request that the informant not receive a reward. Although the BSA’s attorney typically indicates that he or she has no control over the reward, the BSA may take the information into consideration. It is important to wait to make this request after the audit is complete and a settlement is reached.

3) Mitigation. The best way to prevent current employees from turning into informants is to ensure that software compliance is a priority.

Software Asset Management. Following the audit, companies should consider implementing a comprehensive software asset management plan that includes procurement, installation, live management, internal audits, and license maintenance. Ensuring that all software is properly licensed at all times will save significant time and potential penalties from false claims. It is essential that a company maintain accurate records for all software purchases regardless of the age of the product. A plan to manage software compliance in conjunction with appropriate security protocols to prevent individuals from accessing the network or downloading or installing software is the best way to mitigate potential copyright infringement claims.

Lex Machina has published an article highlighting IP trends and data from 2015, including the fact that the distribution of patent cases among district courts remains highly uneven, with the Eastern District of Texas receiving 2,540 cases comprising 43.6 percent of all cases filed in 2015.

Patent litigation in U.S. district courts grew in 2015, with 5,830 patent cases filed, a 15.0 percent rise from 2014 (5,070 cases). Except for 2013, which remains the high-water year for patent litigation (6,114 cases), 2015 surpassed all other previous years.

The report, written by Brian Howard, covers statistics showing filing by quarters for the most-active districts.

Another section of the report covers activity at the Patent Trial and Appeal Board (PTAB), charting petitions by quarter.

The section on trademark litigation reports that fewer trademark cases were filed in 2015 than in any of the previous 10 years, although 2015’s total of 3,449 cases is only 11.6% lower than the median over the same time frame.

Lex Machina’s Copyright Report explains the difference between file sharing cases (those having John Doe or anonymous defendants and accusations based on file sharing technology such as BitTorrent), and other, more traditional cases, detailing the trends.

Read the report.

Many businesses have software licenses that are tailored to the business’ needs, and are for business operations on a day-to-day basis. But what happens if the software provider goes out of business or discontinues support for the software? In short, the business may not have meaningful access to necessary software after it is no longer offered or supported by the publisher. That is, unless the business negotiated a source code escrow agreement, writes Stephen Pinson in Scott & Scott‘s Software & Copyright Law Blog.

A source code escrow agreement is an agreement to deposit the source code of the software with a third party escrow agent. During the negotiation of the software license agreement, the licensee (the business seeking the software for its business needs) can request that the publisher place the source code into escrow and release the source code upon a defaulting event. A defaulting event is usually defined as insolvency, or the filing of bankruptcy by the software provider, or the inability of the software provider to maintain or update the software as promised under the software license agreement.

Normally, a software license agreement conveys access to the object code for the software. However, when there is a source code escrow agreement in place, the source code remains with the escrow agent, and when there is a subsequent defaulting event, the source code is released to the licensee by the escrow agent.

The agreement’s terms are heavily negotiated, because the events that trigger the release of the source code effect the licensor’s possession and control of the source code. Some important defaulting events that should be included in the agreement and negotiated by a licensee are the following:

1. Bankruptcy
2. Insolvency
2. Assignment to the software publisher’s creditors
4. Appointment of a receiver
5. Failure to provide maintenance and/or support agreed upon
6. Failure to correct any material malfunction, defect, or nonconformity of the software functionality
7. Change in control of the provider
8. Default by the licensor after ample opportunity to cure
9. Laying off a substantial number of employees who provide support for the software

Finally, the licensee should negotiate the software provider to escrow the names, phone numbers, and addresses of the software’s programmers so that the licensee can contact them and hire them if needed in case of a defaulting event.

It is important to seek advice from experienced counsel in order to understand all the risks involved when negotiating software licensing agreements.