Digital Content Distribution to Consumers: New Contractual Models

The overall theme of the presentation is – to what extent should (or could) general contractual principles be applied to online transactions of digital content, i.e. copyright protected works? Most service providers of digital content utilize contractual terms in which the user merely receives a limited revocable license to use the material. Thus, from a contractual perspective the consumers do not receive any copies of the “purchased” material, but merely a service containing a right to use the material, even though in some instances they may actually need to download a copy. The contractual aspects of licensing agreements are not subject to any detailed legislation in most countries. The resolution of a contractual dispute therefore normally entails an application of general principles of contract law to the licensing agreement. These general principles have in most instances historically been designed with the sale of physical goods as a template. The presentation will describe how the application of general contract law principles to IP licensing of digital content may cause tension and difficulties. In addition, some practical implications thereof will be highlighted.

Mobile Apps: Working Effectively with Developer Clients

For technology attorneys to work effectively with application (App) developers, they should follow a process to identify, diagnose, and help avoid the most common problems facing mobile Apps and interactive websites. From start-up, during ramp up, and through acquisition, every business developing an App and/or website should be identifying, protecting and enforcing its intellectual property. In addition, mobile App developers and interactive website operators need to understand how their Terms of Use, Privacy Policy and Copyright Policy can make or break their business. Thus, there are practical steps every technology attorney should follow to increase the App developer’s valuable intellectual property while reducing their legal liability. These steps are not that different from any App development lifecycle (e.g. Plan, Develop, Test, Release, Maintain), familiar to App developers (unlike the law) and, thus, more likely to be understood and implemented successfully.

Data Security in Outsourcing & Cloud Computing – Risk Mitigation

The risk of major security breaches in relation to services that are cloud focused has gained increasing prominence, as has the sophistication of the attacks that have been reported. Cloud based services are perceived as more risky than traditional closed IT hierarchies because of their inherent nature and interconnectivity. This session will aim to provide a snapshot of the relevant legislative initiatives that are defining the regulatory landscape in the EU, including the latest view on the Network and Information Security Directive and the EU's Cloud strategy. In the absence of definitive legislation we will then examine current contracting methodologies in outsourcing and cloud computing agreements which are aimed at enhancing cyber-security protection and mitigating risk for the users of these services.

An Inside View from the EU Expert Group on Cloud Computing Contracts

Cloud computing is designed to offer on-demand access to a flexible IT facility at reduced cost. This is attractive to a customer with pressures on budgets and possible uncertainty about predicting its IT requirements, but also carries certain additional risks. Because of these risks, in June 2013 the European Commission set up an Expert Group on Cloud Computing Contracts in order to assist the Commission in the identification of safe and fair contract terms and conditions for cloud computing services for consumers and SMEs. The purpose of the Expert Group is to take into account existing best market practices in contract terms and conditions in cloud computing contracts, as well as the relevant provisions of Directive 95/46/CEC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. The speaker is a member of the Expert Group and will discuss some of the key issues being explored by the Expert Group and approaches being considered to improve confidence in cloud computing. These issues include:

Personal Data Online following Death or Mental Incapacity

The legal treatment of the digital estate of a human being is subject to various laws in Germany. Especially, the law of decedent’s estate, privacy law and the post mortal right to privacy are important. Electronically stored personal information may either be left as property with respect to the media of storage or as contractual claims with respect to a daim for a transfer or a deletion of personal data. This has to be seen from the point of view of a privacy protection also for a death or an incapable person, which might limit a transferability by succession or even exclude it. A post mortal protection of personality is based on a post mortal right of privacy. It is under dispute if the German data protection act is applicable on data of a death. There are good reasons to extend the applicability of data protection laws post mortally.

Sensor Technology and the Internet of Things

Sensors are at the heart of the Internet of Things and the number and variety of sensors deployed is increasing steadily in public environments and in private environments, such as homes and on individuals. By aggregating the data generated by these sensors, sharing it and allowing devices to make decisions based on it, much might be accomplished. However, there are philosophical and legal issues that cannot be ignored in relation to these activities (for example, what are and what are not appropriate decisions for devices to make and who is responsible for these decisions). In addition, when one begins to envision the legal underpinnings and relationships that will be necessary to support such uses, there are many legal issues to be addressed. This presentation will discuss the status of the Sensor Revolution, current thinking on the related legal issues and the efforts in multiple jurisdictions to ensure that an appropriate legal framework is in place.

The Future of Bitcoin

Bitcoin, which is currently the most widely-known and widely-traded of the so-called “crypto-currencies” (or “digital currencies”), has had an up and down ride since it was first described in the so-called “Nakamoto White Paper” in 2008. Bitcoin is an open-source digital currency created by “mining”, which involves solving complex mathematical problems using Nakamoto’s algorithm. During 2013, the price of one bitcoin on exchanges rose from about $20 US to over $1,200 before regulatory questions and other factors caused it to drop back into the $500-800 range. We will trace how bitcoin gained increasing recognition, which accelerated when established companies like Overstock (the largest online retailer) and Zynga (the giant game developer) and others began accepting bitcoin. We then cover the problems encountered when Mt. Gox, which at one point in 2013 had been the dominant bitcoin exchange, in early 2014 ran into control issues and filed for bankruptcy, stating that it may have lost half a billion dollars worth of the currency due to hackers into its system. Going forward, the major questions include what sort of regulatory regime the digital currencies like bitcoin will ultimately face, particularly in light of calls at the state and federal level for closer scrutiny, what pressures are expected from the banking industry, and which other digital currencies will offer the greatest potential competition to bitcoin in the future.

Social and Video Gaming: Managing Player-Generated Content, In-Game Advertising and Player Profiling

This presentation will focus on two trends that have dramatically changed the video gaming industry in recent years: the digital distribution of video games and social gaming - with a view to explore what “conventional” legal concepts found in IT contracting can be applied to the video gaming sphere - and what issues are particularly germane to video gaming.

Looking at the various legal issues surrounding the digital distribution of video games, the presentation will address how “traditional” EULA provisions can be used to manage the legal relationships between the developer and the players, and then discuss how additional contractual arrangements may be required to manage player-generated content, access by minors, gaming ratings, in-game advertising and consumer protection issues, privacy issues, and the clearance of music rights.

Turning to social gaming, the session will further explore how traditional EULA and privacy policies can be used to address the legal issues related to virtual property, virtual currency, and consumer profiling and marketing practices.

This presentation will be particularly interesting to lawyers practicing in more traditional IT sectors by providing them with practical guidance as to how their current knowledge can be leveraged to serve clients in the video gaming industry and, indeed, beyond into a world of increasing digital distribution in TV, film, and music.

Implications of New Global Top Level Domains

The expansion of delegated gTLDs has only recently begun, and its impact is unclear and may remain so for some time. This presentation will address how trademark holders are protecting their intellectual property as new gTLDs are delegated, the policy rationales supporting the expansion of gTLDs, and the practical successes and challenges encountered thus far. We will also address the near-term impact of the program on businesses and governments as well as the long-term implications of the expansion on individual consumers and users of the Internet.

Legal Implications of Wearable Computing

Wearable computing may be identified as an emerging technological trend. Google glass and smart watches are already, or will soon be, available on the market. But these are only first examples of high-tech devices worn in, on or near to the human body. More devices with sensors (e.g. tooth implants or textiles) will follow. Such devices will enable monitoring and metering of physical parameters (such as pulse or blood pressure) and ease context recognition (e.g. is a person eating/drinking, sleeping, doing sports or a phone call) what may greatly facilitate the individual's life - or not.

Wearable computing will raise a number of legal issues which may not be totally unseen so far, but will have to be dealt with in new scales and dimensions. Data protection is a perfect example, bearing in mind that sensors will collect and process an individual's personal data 24/7, including highly sensitive data. Product liability is another crucial topic, trying to imagine what consequences may result from defective or inaccurate devices (e.g. a device erroneously interpreting car driving as sleeping or a built-in sensor indicating an incorrect glucose level for a diabetes patient). Regulatory aspects may also become relevant: Depending on the scope of application, wearable devices may be considered as medical products and be subject to restrictive market authorisations and extensive certification procedures.

This presentation will try to address these and further highly interesting issues from a legal perspective, mainly based on general principles drawn from a multi-jurisdictional approach.

Roundtable Discussion on Current Patent Issues, including Patent Monetization and Non-Practicing Entities

Commercializing patents allows you to maximize returns on your patent investments with little “out of pocket” expense and utilizing and profiting from dormant patents. You can promote your technology and strengthen your position in the field of your business, create additional shareholder value for your company and promote your long term financial and technological strategy.

How would you commercialize your patents?

Examples are: Vcon, Alvarion, design patents ‘677 and ‘087 of Apple.

Changes in NPEs!

Data Privacy Across Latin America

If you ask a privacy expert about data protection regulation models, maybe he or she would mention Europe, the USA and will highlight some Asian countries, however most would probably provide no express mention of Latin America. Latin America has emerged as a new key player in this field. With countries such as Brazil, Mexico, Peru, Colombia and Chile with approximately 4-5% annual economic growth rates, strong commercial agreements with the USA, Europe and the Asia Pacific Economic Cooperation (APEC), and attractive business environments for the establishment of technology enterprises, it is inevitable to exclude Latin America from the big picture on privacy and data protection. In fact, recently Uruguay, Mexico, Peru, Colombia and Costa Rica have enacted comprehensive data protection legislation. Also, Argentina and Uruguay have been considered safe harbors as international data transfer destinations by the EU. The purpose of this paper is to show the main highlights of the Latin American data protection model and forecast its impact and development in the international arena.

Software Asset Management and Enforcement Audits

Since 2008/2009 the number of audits effected and the resulting claims have increased. Some vendors,  including IBM and CA, will now carry out audits at fixed intervals (normally three years) and licensing models are becoming increasingly complex to monitor (transactions based virtualization and cloud) as compared to straightforward per user based licensing.

Discussion subjects will include:

New Technologies and Old and New Consumer Protection Issues

The Federal Trade Commission is tasked with protecting consumers against unfair, deceptive or fraudulent practices. As technologies evolve, the Commission has continued to apply its fundamental consumer protection principles – such as the importance of providing truthful, accurate information, making clear disclosures and getting consent to charges – in new areas. From the Internet of things to health apps to mobile payments, this presentation will discuss how the FTC has tackled these issues while adhering to its tried and true consumer protection principles.

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agenda

Wednesday, May 14 , 2014

Committee meetings
12:00 – 5:00 p.m.
Registration Pick up your badge and conference materials

3:00 – 4:00 p.m.
Arbitration & Mediation Committee Meeting
E-Commerce Committee Meeting
Data Protection Committee Meeting
held at the offices of Edwards Wildman, 750 Lexington Avenue, about a 10 minute walk from the Waldorf

4:00 – 5:00 p.m.
Social Media & Gaming Committee Meeting
Outsourcing Committee Meeting
Intellectual Property Committee Meeting
held at the offices of Edwards Wildman, 750 Lexington Avenue, about a 10 minute walk from the Waldorf

6:30 – 8:00 p.m.
Welcome Reception – John Jacob Astor Salon at the Waldorf Astoria NEW YORK

    Thursday, May 15 , 2014

    7:30 a.m. – 8:45 a.m.
    Breakfast and Registration Mingle and enjoy breakfast after picking up your badge and conference materials

    8:00 a.m. – 8:45 a.m.
    Membership/Local Representatives Committee Meeting
    The Membership Committee monitors the status of ITechLaw membership, and initiates and executes strategies to strengthen and grow ITechLaw membership through various retention and recruitment initiatives.

    8:45 a.m. – 9:15 a.m.
    Presidential Welcome Sajai Singh, Incoming President of ITechLaw welcomes all to the 2014 World Technology Law Conference

    9:15 a.m. – 10:15 a.m.
    Innovation

    Sensor Technology and the Internet of Things
    Fraser Mann, Mann Symons LLP, Toronto

    Legal Implications of Wearable Computing
    Roland Mathys, Wenger Plattner LLP, Basel

    A Vision for Consumer 3D Printing
     

    10:15 a.m. – 11:00 a.m.
    Licensing and Contracting
    Moderator: Vipul N. Nishawala, Pillsbury Winthrop Shaw Pittman, LLP, New York

    Software Asset Management and Enforcement Audits
    Lau Jorgensen, KromannReumert, Copenhagen

    An Inside View from the EU Expert Group on Cloud Computing – Identifying Safe and Fair Contract Terms for SMEs and Consumers
    Sam De Silva, Penningtons Manches LLP, Oxford

    11:00 a.m. – 11:30 a.m.
    Networking Break Mingle, network and talk with vendors and colleagues.

    11:30 a.m. – 1:00 p.m.
    Cyber Security
    Moderator: Christine Ing, Blake, Cassels & Graydon LLP, Toronto

    Strategies to Control the Risk of Targeted Attacks

    Peter Brown, Peter Brown & Associates PLLC, New York City
    Timothy Ryan, Kroll Advisory Services Professor David Opderbeck, Seton Hall University Law School

    Managing Security and Privacy in Cloud Agreements and Outsourcing
    John Buyers, Osborne Clarke, London
    Barry Sookman, McCarthy Tetrault LLP, Toronto

    1:00 p.m. – 2:15 p.m.
    Lunch

    1:30 p.m. – 2:15 p.m.
    In-House Counsel Committee Meeting The Committee is comprised of ITechLaw members interested in the unique topics, trends and issues of concern to corporate and in-house counsel. The Committee identifies themes of interest to in house counsel and to understand how best they can benefit from ITechLaw.

    2:15 p.m. – 3:30 p.m.
    Interactive Workshop – Outsourcing

    Outsourcing on Wall Street: Latest Developments in IT Outsourcing Projects in the Banking Sector
    Thomas Thalhofer, Noerr LLP, Munich

    (Additional Topics To Be Announced)
    Take part in this in-depth workshop, featuring group discussions and led by experts in the field.

    3:30 p.m. – 4:00 p.m.
    Networking Break Mingle, network and talk with vendors and colleagues.

    4:00 p.m. – 5:00 p.m.
    Mobile Telecoms

    Mobile Apps: Working Effectively with Developer Clients
    Brian Hall, Traverse Legal PLLC, Traverse (MI)

    What Does Your App Know? Mobile Privacy
    Fredrik Roos, Setterwalls, Götebor

    5:00 p.m. – 6:30 p.m.
    Networking/Free Time Mingle, network and talk with vendors and colleagues, or go off and explore the city on your own.

    6:30 – 8:00 p.m.
    Gala Reception & Dinner – UNITED NATIONS

     

      Friday, May 16 , 2014

      8:00 – 9:00 a.m.
      Breakfast and Registration Mingle and enjoy breakfast after picking up your badge and conference materials

      8:00 – 9:00 a.m.
      I-WIN Committee Meeting  

      9:00 – 9:50 a.m.
      Data Privacy Perspectives
      Moderator: Laura Liguori, Portolano Cavallo, Rome

      Data Privacy Across Latin America
      Oscar Montezuma, Montezuma & Panez Consultores Legale, Peru

      Personal Data Online following Death or Mental Incapacity
      Oliver Habel, tecLEGAL Habel Rechtsanwaelte, Munich (Germany)
       

      9:50 a.m. – 10:45 a.m.
      Media Convergence

      Digital Content/E-Publishing


      Digital Content Distribution to Consumers: New Contractual Models
      Stojan Arnerstål, Von Lode Advokat, Stockholm, Sweden
       

      10:45 a.m. – 11:15 a.m.
      Networking Break Mingle, network and talk with vendors and colleagues.

      11:15 a.m. – 12:30 p.m.
      Interactive Workshop – E-Commerce

      The Future of Bitcoin
      Denis Rice, Arnold & Porter, San Francisco

      Navigating the Nuances of Crowdfunding: Equities, Tokens, Investments or Just Plain Fun
      Charles Mudd, Jr., Mudd Law Offices, Chicago

      (Additional Topics To Be Announced)
      Take part in this in-depth workshop, featuring group discussions and led by experts in the field.

      12:30 p.m. – 1:50 p.m.
      Lunch

      1:50 p.m. – 3:00 p.m.
      Intellectual Property
      Moderator: Joren de Wachter, Integrating Technology, IP & Business Models, Brussels

      Roundtable Discussion on Current Patent Issues, including Patent Monetization and Non-Practicing Entities

      Naomi Assia, Naomi Assia & Co. Law Offices, Tel Aviv


      Implications of New Global Top Level Domains
      Edward F. Maluf, Seyfarth Shaw LLP, New York City

      3:00 p.m. – 3:30 p.m.
      Networking Break Mingle, network and talk with vendors and colleagues.

      3:30 p.m. – 4:45 p.m.
      Internet/Social Media

      Social and Video Gaming: Managing Player-Generated Content, In-Game Advertising and Player Profiling
      Maxime Gagne, St. Lawrence - MTL, Montreal

      New Technologies and Old and New Consumer Protection Issues
      Daniel Kaufman, Deputy Director, Bureau of Consumer Protection at Federal Trade Commission, Washington, D.C.

      4:45 p.m. – 5:00 p.m.
      Closing Remarks

      6:00 p.m. – 7:30 p.m.
      Closing Reception – Vermillion