Pls 780 week 5


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Pls 780 week 5

  1. 1. PLS 780 Week 5
  2. 2. Agenda • Contracts overall • Contracts and the internet • The importance of defensible agreements in online environments • Licenses • Joint ventures, partnerships and manufacturing/supply chain agreements • Proprietary contracts for software
  3. 3. Contract • 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 agreeing parties • Ultimately a bet. Why?
  4. 4. 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
  5. 5. Performance • Conditions: Contracts are oftentimes premised upon outside events taking place that are required under the terms of the contract; These are called conditions • They can be preceding (precedent) or succeeding (subsequent) • Think complicated processes that depend upon certain things happening before parties can act…
  6. 6. 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 complicated!
  7. 7. Rockland Trust v Computer Associates • Facts • Issue • Holding • Rule: What does this case stand for?
  8. 8. Contracts Relevant to Internet and Technology Users/Providers • Tons! • All facets of operations can and should have some contractual elements • Think about a company like Apple, Google or and review the graphic on page 269 of text
  9. 9. Licensing • 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
  10. 10. Bayh-Dole Act • 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 technology • 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?
  11. 11. Pitt v Townsend • Facts • Issue • Holding • Rule
  12. 12. Forms of Licenses • Technology transfer agreements • In-licensing agreements • Outbound licensing • Cross-licensing • Exercise: In small groups consider the pros and cons of each of these for 10 minutes and report back to the group
  13. 13. Partnerships • 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 (production based) • Barter contracts (startups prefer these arrangements)
  14. 14. 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
  15. 15. Proprietary agreements • 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 websites) • Software Developer Kits (SDK’s) (how developers develop products within an OS environment) • Is unconscionability an issue?
  16. 16. Feldman v Google • Facts • Issue • Holding • Rule
  17. 17. Davidson & Blizzard v Internet Gateway • Facts • Issue • Rule • Holding
  18. 18. Free and Open Source Software Agreements • Permissive licenses--completely open from source code to use of the software; no conditions attached to use • CopyLeft licenses—more “restrictive” or conditional in that derivative works are also made to be freely available
  19. 19. Policy issues and software licensing • Piracy, copyright infringement and more • Software and intellectual property law are oftentimes at odds • 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 protecting software?