• Contracts overall
• Contracts and the internet
• The importance of defensible agreements in online
• Joint ventures, partnerships and
manufacturing/supply chain agreements
• Proprietary contracts for software
• Agreements, alliances, deals
• Based upon the idea that two parties need to work
together—cant do it alone!
• Premised upon negotiation
• Roadmap for rights and duties between two
• Ultimately a bet. Why?
Elements of a Contract
• Offer (must be defined and limited)
• Acceptance (expressed or implied)
• Consideration (something of value that each party
gets---not one sided!)
• Cannot be unconscionable (so one-sided that it
shocks the conscience)
• Legal Capacity
• Conditions: Contracts are oftentimes premised upon
outside events taking place that are required under
the terms of the contract; These are called
• They can be preceding (precedent) or succeeding
• Think complicated processes that depend upon
certain things happening before parties can act…
Discharge, Termination, B
reach & Remedies
• Contracts can end in a number of ways
• Discharge (being fully completed)
• Terminated by both parties due to conditions not
being met or by clauses that called for termination
based upon specific events
• Breached when one of the parties fails
• Remedies are provided in case of breach either by
the terms of the contract or a judgment—can be
Rockland Trust v
• Rule: What does this case stand for?
Contracts Relevant to
Internet and Technology
• All facets of operations can and should have some
• Think about a company like Apple, Google or
amazon.com and review the graphic on page 269 of
• Extremely important in technology
• The idea that you can control technology or
intellectual property owned while getting others to
use and pay for it
• Android is a licensing success for Google
• Even competitors license each other’s technology
(Apple and Samsung for example)
• Usually incorporate some type of NDA
• Prior to 1980 federal funds given for research meant
the government had ownership of new technologies
• After the act the research (or sponsoring entity
usually) has ownership in order to promote
innovation, creativity and commercialization of new
• Is this good policy?
• Worked for Google. What do I mean by that?
• Can you think of instances where this act might stifle
innovation or creativity?
Forms of Licenses
• Technology transfer agreements
• In-licensing agreements
• Outbound licensing
• Exercise: In small groups consider the pros and
cons of each of these for 10 minutes and report
back to the group
• Sometimes the relationship goes deeper and
licensing is insufficient to the task
• Partnerships are useful vehicles for technology
companies to cement relationships (again, all about
defining rights and duties!)
• Joint ventures (project based agreements)
• Contract Manufacturing/Supply chain Agreements
• Barter contracts (startups prefer these
Government oversight of
contracts in technology
• What are the concerns?
• Why would government inject itself into this space?
• What policy goals are being pursued?
• Pp 284-85
• Agreements that require user to act in a certain way
as a condition of use (software of website)
• Site license agreements (how users interact with
• Software Developer Kits (SDK’s) (how developers
develop products within an OS environment)
• Is unconscionability an issue?
Feldman v Google
Davidson & Blizzard v
Free and Open Source
• Permissive licenses--completely open from source
code to use of the software; no conditions attached
• CopyLeft licenses—more “restrictive” or conditional
in that derivative works are also made to be freely
Policy issues and
• Piracy, copyright infringement and more
• Software and intellectual property law are oftentimes at
• Traditionally software was copyrighted (problems?) as
well as patented (difficult and limited) or protected under
trade secrets law
• Digital Rights Management is making this irrelevant?
• Policy issues? Should intellectual property law be the
main force for protection? Is it adequate to the task of
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