May 14, 2020

Technology Law

Technology Law

Recent Changes in Employee Ownership Laws: Employers May Not Own Their Inventions and Confidential Information
      Ronald B. Coolley, 41(1): 57–75 (Nov. 1985)
This Article analyzes recent state legislation and judicial decisions affecting employment agreements and discusses items to consider in reviewing or revising current employment agreements and in drafting new employment agreements.

The Impact of Law and Regulation on Technology: The Case History of Cellular Radio
      John W. Berresford, 44(3): 721–35 (May 1989)
Lawyers virtually created the cellular mobile telephone business in FCC and court proceedings lasting over a decade. In this Article, the author speculates how the business would have evolved if lawyers had not played such a central role or if they had decided to structure the business differently. The result is an opinion on whether the legal and regulatory system, in this instance, produced a better business than would otherwise have been the case.

The Commercial Use of Electronic Data Interchange—A Report and Model Trading Partner Agreement
      Electronic Messaging Services Task Force, 45(S): 1645–1749 (June 1990)

When Software Fails: Emerging Standards of Vendor Liability Under the Uniform Commercial Code
      Douglas E. Phillips, 50(1): 151–81 (Nov. 1994)
As businesses depend more than ever upon computer software, vendor strategies to transfer software failure risk to the user through contract boilerplate are increasingly problematic. This Article examines vendor liability for software failure under the U.C.C., which most courts now apply to software contracts. The Article identifies key software failure issues and describes successful user strategies for overcoming common vendor defenses.

A Commercial Lawyer's Take on the Electronic Purse: An Analysis of Commercial Law Issues Associated with Stored-Value Cards and Electronic Money
      Task Force on Stored-Value Cards, 52(2): 653–727 (Feb. 1997)
The existing legal framework and regulatory apparatus for retail payments seems ill-equipped to deal with an electronic future if it unfolds as anticipated. The primary objective of the Task Force's report is to consider the commercial law that may govern new electronic retail payment media, such as stored-value cards and electronic money, and to see whether some tried and true principles of our commercial law may provide useful building blocks which will facilitate development.

SEC Enforcement and the Internet: Meeting the Challenge of the Next Millennium; A Program for the Eagle and the Internet
      Joseph J. Cella III and John Reed Stark, 52(3): 815–49 (May 1997)
The information revolution orchestrated by the Internet has created fantastic opportunities in the areas of securities, investments, and commerce, bringing about a remarkable boom for investors. Investors can now communicate with almost every conceivable market participant and find libraries of information about companies—all at little cost, with little effort, and from the comfort of their own living rooms. Unfortunately, a small minority of Internet users are attempting to ruin it for the rest, using this extraordinary and exciting futuristic medium to commit securities fraud and steal from investors. This Article (i) provides an introduction to the Internet and its many uses for investors; (ii) analyzes the Internet as it relates to the federal securities laws; and (iii) discusses the SEC Division of Enforcement's Internet program to combat the use of the Internet to commit securities fraud. The Internet program, implemented during the past year, needs no new laws, rules, or regulations and has emerged as one of the most successful programs to date among federal, state, and local law-enforcement agencies.

Brave New World?: The Impact(s) of the Internet on Modern Securities Regulation
      John C. Coffee, Jr., 52(4): 1195–1233 (Aug. 1997)
This Article surveys the impact of the Internet, and the SEC's evolving response to it, in four developing areas: (i) the initial public offering context, (ii) the appearance of alternative trading systems in secondary markets, (iii) the private placement market, and (iv) extraterritorial offerings. The focus is on the Internet's likely impact on intermediaries and gatekeepers, and this Article concludes that, while the prospect for "disintermediation" has been overstated, a market structure characterized by partial disintermediation could result under which broker-dealer firms will increasingly compete with unregulated communication networks. This Article also suggests specific deregulatory steps the SEC should take in recognition of the special status of electronic communications and the awkward fit between such communications and the statutory structure of the federal securities laws. In addition, this Article examines the increased prospect for fraud on the Internet and suggests that the traceability of Internet communications may become a necessary element of market transparency.

Licensing Intellectual Property and Technology from the Financially Troubled or Startup Company: Prebankruptcy Strategies to Minimize the Risk in a Licensee's Intellectual Property and Technology Investment
      Richard M. Cieri and Michelle M. Morgan, 55(4): 1649–98 (Aug. 2000)
In today's new economy, intellectual property and technology industries are booming. As a result, companies and financial institutions increasingly are presented with new business and investment opportunities with high-tech companies. Although the potential return on such a business relationship or investment may be high, so also is the risk that the high-tech company will experience financial difficulties. A company or financial institution considering a business relationship or investment with a high-tech company thus should recognize this risk and take steps to protect its intellectual property and technology investment. This Article summarizes the potential risks facing a company or financial institution doing business with a high-tech company and suggests actions that may be taken to protect this intellectual property and technology investment.

Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdictional Issues Created by the Internet
      Committee on Cyberspace Law, 55(4): 1801–1946 (Aug. 2000)
The explosion of electronic commerce has dramatically increased the contact between buyers and sellers habitually resident in different states or countries and has, therefore, also dramatically increased the number of potential disputes in which jurisdictional issues may arise. The law of jurisdiction historically has focused on where certain acts occurred; in cyberspace, such questions are difficult to resolve. Nonetheless, parties themselves exist in real space and may target others in known locations. Although such targeting is ordinarily thought of as the act of a seller, the search power of the Internet empowers buyers as well, allowing them to find a local, passive seller with ease. In light of such changes in classic jurisdictional assumptions, the Report begins by proposing certain solutions to various repeating jurisdictional questions. It then sets out and explains the changes, discusses the doctrinal framework for personal, prescriptive, and enforcement jurisdiction from the points of view of the United States, the European Union, and Japan, and finally considers how changes and doctrine affect nine specific substantive law areas most frequently implicated by electronic commerce.

Who Owns the Customer? The Emerging Law of Commercial Transactions in Electronic Customer Data
      Jane Kaufman Winn and James R. Wrathall, 56(1): 213 (Nov. 2000)
Commercial uses of customer information are expanding more rapidly than the law governing transactions in such information. Although careful attention to contract terms can reduce the scope of potential problems, contractual privity may not exist among all the interested parties. Data privacy obligations may render some contract terms unenforceable. The absence of clearly defined statutory rights and priorities among competing interests in customer databases is likely to persist for some time. In the face of such legal uncertainty, practical steps, such as improving the security of the information systems in which such assets are stored, will be important strategies for businesses with valuable customer databases.

Internet Incubators: How to Invest in the New Economy Without Becoming an Investment Company
      Meredith M. Brown, Michael P. Harrell, and William D. Regner, 56(1): 273 (Nov. 2000)
A number of firms have sought to participate in the growth of the new economy by forming "incubators"-organizations that foster startup companies and help them grow into viable businesses. Incubators, which often hold minority equity stakes in the companies they nurture, may find themselves bumping up against the restrictions of the Investment Company Act of 1940. This Article discusses possible methods of organizing and operating an incubation business in a way that avoids becoming an investment company subject to regulation under the Investment Company Act.

On-Line Broker-Dealers: Conducting Compliance Reviews in Cyberspace
      Joseph M. Furey and Beth D. Kiesewetter, 56(4): 1461 (Aug. 2001)
Business models for broker-dealers continue to evolve amid structural changes to our capital markets and continued technological enhancements. Regardless of what business model a broker-dealer ultimately selects for itself, developing or enhancing an on-line capability will be a necessity. Federal and state laws and regulations, as well as Self- Regulatory Organizations rules require broker-dealers to supervise their on-line trading systems and marketing activities. Scrutiny by state and federal securities regulatory authorities of on-line broker-dealers has increasingly focused on systems capacity issues and the disclosures made, or not made, by management with regard to the benefits and drawbacks of on-line trading. Broker-dealers that provide on-line trading capabilities to their customers should focus their attention on matters involving systems capacity, advertising and investor education, suitability, best execution, pricing of market data, relationships with internet portals, on-line discussion forums, customer privacy, electronic books and records, and day trading. In these circumstances, more on-line broker-dealers have conducted compliance reviews of their supervisory procedures and on-line trading systems to take into account new rules and other guidance provided by securities regulators. This Article examines issues broker-dealers should consider in developing and reviewing supervisory procedures and controls for market conduct and sales practices in an on-line environment.

EnforceNet Redux: A Retrospective of the SEC's Internet Program Four Years After Its Genesis
      John Reed Stark, 57(1): 105 (Nov. 2001)
In May of 1997, in this publication, the genesis of the SEC Internet Enforcement Program was synthesized and elaborated upon in an article entitled "SEC Enforcement and the Internet: Meeting the Challenge of the Next Millennium. A Program for the Eagle and the Internet." Back then, Internet Enforcement strategies remained the subject of intense debate, and "Enforcenet" was, for the most part, just a theory. Now, more than four years later, the same author revisits the SEC's Internet Program, this time using a litany of empirical evidence from which to draw conclusions. In this Article, the author: (i) provides some general background on the Internet and how it has transformed (and empowered) today's investment community; (ii) analyzes the history of Internet-related securities fraud, tracing its evolution to date; (iii) explains the SEC's significant and expansive efforts to combat securities related Internet fraud; and (iv) offers some conclusions about the overall efficacy of the SEC's Internet program. Given its now hefty track record of close to 300 Internet related enforcement actions charging close to 950 entities and individuals, the SEC's enforcement efforts appear to have succeeded even better than expected, keeping Internet users safe from online con artists-all while actually enhancing or even bolstering (rather than, as some theorized four years ago, constricting or even hindering) the rapidly growing flow of legitimate Internet commerce.

2001 Mendes Hershman Student Writing Contest Prize Essay: Employee Privacy and Internet Monitoring: Balancing Workers' Rights and Dignity with Legitimate Management Interests
      Charles E. Frayer, 57(2): 857 (Feb. 2002)
At the dawn of the Internet age, employers face serious risks from employee misuse of this new communication medium. To reduce these risks, employers are turning to new monitoring technology enabling them to secretly view, record, and report literally everything employees do on their computers. Employee advocates assert that such surreptitious monitoring may infringe on employee privacy and other protected workplace rights. This Article addresses whether and when employers should be required to notify employees of monitoring practices. It gives examples of monitoring technology, reviews the history and current state of employee privacy in America, details relevant legislative efforts, discusses options suggested by leading thinkers, and recommends a balanced solution.

An Assessment of the Effects Test in Determining Personal Jurisdiction in Cyberspace
     Denis T. Rice and Julia Gladstone, 58(2): 601 (Feb. 2003)
Questions of personal jurisdiction in disputes arising from activity on the Internet have increasingly drawn upon the so-called effects test, derived from a 1984 U.S. Supreme Court decision. At the same time, courts continue to invoke the "sliding scale" test, based upon the degree of interactivity of a website, which was originally developed by a federal district court in 1996. This Article describes the evolution of the effects test, compares its strengths, weaknesses and judicial variations with the sliding scale, and concludes that application of the effects test can involve a degree of subjectivity regardless of how it is defined.

Home Banking Services Agreement
      Task Force on Home Banking Services Agreement, ABA Section of Business Law, 61(2):611—640 (February 2006)

Consumer PerspectiveÂ-Home Banking Agreements: Don't Bank on Them
      Mark E. Budnitz, Donald F. Clifford, Michael Ferry, and Margot Saunders, 61(2):641—652 (February 2006)

Task Force Response to Consumer Perspective
      Task Force on Home Banking Services Agreement, ABA Section of Business Law, 61(2):653—658(February 2006)

Framework for Control over Electronic Chattel PaperÂ-Compliance with UCC § 9–105
      Working Group on Transferability of Electronic Financial Assets, a Joint Working Group of the Committee on Cyberspace Law and the Committee on the Uniform Commercial Code of the ABA Section of Business Law and The Open Group Security Forum, 61(2):721—744 (February 2006)

Securities on Blockchain and the Uniform Commercial Code
     Reade Ryan and Mayme Donohue; 73(1): 85-108 (Winter 2017/2018)
This article initially provides a high-level description of blockchain technology intended to be accessible to those without a technical background, and illustratively describes an existing blockchain system that already evidences securities issued and being traded. The article then sets forth and analyzes how Article 8 of the Uniform Commercial Code covers blockchain securities as “uncertificated securities.” Finally, the article provides guidance to corporate lawyers faced with giving a legal opinion relating to the issuance and sale of securities on a blockchain.

Notice and Assent Through Technological Change: The Enduring Relevance of the Work of the ABA Joint Working Group on Electronic Contracting Practices
      Nancy S. Kim, Juliet M. Moringiello, and John E. Ottaviani; 75(2): 1725-1746 (Spring 2020)
This article, prepared for the 75th anniversary volume of The Business Lawyer, reflects on the efforts of the ABA Business Law Section’s Joint Working Group on Electronic Contracting Practices. The Working Group produced two articles in The Business Lawyer in 2001 and 2003 that were designed to give guidance to companies presenting standard-form contract terms electronically.