Now more than ever, technology is influencing the way we do business, communicate, move through and around the world, access and manage our homes, receive and administer healthcare, make purchases, secure information, and protect our most valuable property. Morrison Foerster keeps pace with this rapidly evolving landscape across our internationally recognized corporate, finance, intellectual property, and litigation practices. MoFo Tech brings together our insights relating to fields such as blockchain and distributed ledger, cloud and as-a-service technologies, driverless cars, drones, fintech, computer hardware and software, the Internet of Things, semiconductors, and telecommunications. The MoFo Tech blog offers real-time, in-depth analyses of the trends and complex issues shaping the global technology industry.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Scott Llewellyn’s practice focuses on complex litigation in federal and state courts around the country, with an emphasis on patent and trade secret disputes. Over the past decade, he has worked on some of the most significant, high–profile IP cases involving technology for televisions, smartphones, and self–driving cars, relying on 40 years of experience with computer hardware and software. Scott also has significant experience with business divorce cases before courts and arbitrators, involving a mix of trade secret, patent, tort, and contract claims relating to technology development and implementation.Scott also has successfully tried general commercial arbitration and agency matters, briefed and argued various appeals in federal appellate court, and tried more than 20 cases for the Denver City Attorney’s office, most of them jury trials.Scott also has an active pro bono practice, having worked on a variety of criminal and immigration appeals, and having represented Colorado criminal defense and mental health organizations in high–profile suits against the state of Colorado for violations of the constitutional rights of defendants.At MoFo, Scott serves on the board of the Morrison & Foerster Foundation. In the broader legal community, he serves on the boards of the Colorado Lawyers Committee and Drop in the Bucket (a charity that builds wells and sanitation systems in sub–Saharan Africa).After law school, Scott clerked for the Honorable Clarence A. Brimmer, District of Wyoming, and the Honorable Diarmuid F. O’Scannlain, Ninth Circuit. He was also previously an adjunct professor at the Georgetown University Law Center.

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Partner

Scott Llewellyn’s practice involves complex litigation before state and federal courts around the country, with an emphasis on patent and trade secret disputes for high-tech companies, to which he brings more than 35 years of experience with computer hardware and software, in particular relating to the processing and transmission of audio, video, voice, and other types of data. Mr. Llewellyn has also tried commercial arbitration and agency matters; briefed and argued various appeals in federal appellate court; and tried more than 20 cases for the Denver city attorney’s office, most of them jury trials.

Scott F. Llewellyn

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MoFo Tech brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry, covering fields such as blockchain and distributed ledger, cloud and SaaS technologies, driverless cars, drones, FinTech, computer hardware and software, the IoT, semiconductors, and telecommunications.

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MoFo Tech brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry, covering fields such as blockchain and distributed ledger, cloud and SaaS technologies, driverless cars, drones, FinTech, computer hardware and software, the IoT, semiconductors, and telecommunications.

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AI Transparency in Healthcare: Navigating a Changing Regulatory Landscape

Recentive: Federal Circuit’s Patent-Eligibility Guideposts for Machine-Learning Inventions

Japan’s Approach to AI Regulation in 2025

Federal Circuit Clarifies Requirements for Prior Art Under Pre-AIA 35 U.S.C. § 102(e)

AI Agent as a Service in Medtech - Key Considerations for Commercial Contracts

Just two months after the final implementing regulations under the California Consumer Privacy Act of 2018 (CCPA) (“the Regulations”) were approved and took effect, California’s Department of Justice (DOJ) has issued another set of proposed modifications and invited written comments from interested stakeholders.  The modifications, which re-introduce provisions that California’s Office of Administrative Law (OAL) withdrew before finalizing the Regulations in August 2020, could impact covered businesses’ CCPA compliance programs, particularly with respect to their provision of notices regarding consumers’ right to opt out of the sale of their personal information, as well as the submission of consumers’ opt-out requests. Please read our summary of the proposed modifications.Read our <a href="https://protect-us.mimecast.com/s/pAcFCYElrZFx2kEJFGI3n8?domain=www2.mofo.com">client alert.</a>

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October Surprise: California DOJ Proposes Additional Modifications to CCPA’s Implementing Regulations

Recent Decision Compelling Disclosure of Data Breach Incident Response Report Highlights the Importance of Preserving Privilege and Protecting Work Product

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Just two months after the final implementing regulations under the California Consumer Privacy Act of 2018 (CCPA) (“the Regulations”) were approved and took eff

October Surprise: California DOJ Proposes Additional Modifications to CCPA’s Implementing Regulations

The USPTO recently released the report “Public Views on Artificial Intelligence and Intellectual Property Policy”. The report is part of the USPTO’s effort to engage with the innovation community and experts on AI and to promote innovation of AI through appropriate intellectual property incentives. The report includes the analysis of nearly 200 responses received from individuals and organizations to federal notices published in August and October 2019 to solicit public comments on patenting AI inventions and the impact of AI on other areas of intellectual property policy. The USPTO requested feedback on issues such as whether current laws and regulations regarding patent inventorship and authorship of copyrighted work should be revised to take into account contributions other than by natural persons.Read our <a href="https://www.mofo.com/resources/insights/201012-uspto-report-on-ai.html">client alert</a>.

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Tessa J. Schwartz, partner, has extensive experience in complex intellectual property and technology law, copyright law, and patent litigation. Tessa is also the founder and co-chair of the firm’s Artificial Intelligence Group.

Tessa J. Schwartz, partner, has extensive experience in complex intellectual property and technology law, copyright law, and patent litigation.

Tessa Schwartz

Tessa Schwartz has an active practice counseling companies on intellectual property and technology transactions issues, and negotiating complex intellectual property and commercial agreements.

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In the Public Eye: USPTO Issues Report on AI

In the Public Eye: USPTO Issues Report on AI

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The USPTO recently released the report “Public Views on Artificial Intelligence and Intellectual Property Policy”. The report is part of the USPTO’s effort to e

This alert summarizes several legislative updates related to the handling of personal information in the so-called “digital market,” including:<ul><li>The amendment to the Personal Information Protection Act;</li><li>New guidelines by the Japan Fair Trade Commission, which address businesses operating digital platforms; and</li><li>The enactment of the Digital Platformer Transaction Transparency Act.</li></ul>These updates could have potentially far-reaching privacy implications for tech companies doing business in Japan, particularly those engaged in online services such as search providers, social networking services, and electronic commerce.Read our <a href="https://protect-us.mimecast.com/s/BLNJCVO0oWIRZD2mfznfjk?domain=www2.mofo.com">client alert.</a>

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Yuki is a partner of Morrison & Foerster Law Offices. He has more than 25 years of experience in litigation and dispute resolution, including disputes relating to commercial transactions, product liab

Yukihiro Terazawa

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Japan: Privacy Updates on Handling Personal Information in the “Digital Market”

Japan: Privacy Updates on Handling Personal Information in the “Digital Market”

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This alert summarizes several legislative updates related to the handling of personal information in the so-called “digital market,” including:

The amendment t

Online platform operators have a rare cause to be cautiously optimistic at news from the European court. In a recently-published European Court of Justice (ECJ) opinion, Advocate General Henrik Saugmandsgaard Øe stated that, under the current EU legal regime, operators should not be directly liable for the illegal uploading of protected works by platform users. This addresses a recurrent issue over the last few years, whereby platform operators have repeatedly argued that they cannot be held responsible for the activities of platform users.BackgroundThe Federal Court of Justice in Germany originally referred questions to the ECJ in relation to cases involving a music producer who initiated proceedings when recordings, to which he asserted rights, were uploaded to YouTube without his consent; similarly, a second case in which a claimant sued when materials, to which it held exclusive rights, were uploaded without its consent by platform users to an online file-hosting and sharing platform.The Advocate General’s opinion on the current legal regimeThe Advocate General took the view that, where a platform user infringes the exclusive rights of a creator by uploading protected works, the platform operator should not be held directly liable. His rationale covered the following points:<ul><li>Platform operators provide an intermediary service that enables users to carry out a “communication to the public”. Platform operators do not usually carry out such acts themselves. Consequently, any liability arising from such communication should rest with the users uploading such content.</li><li>Once a platform user initiates an upload, the upload itself is an automatic process—i.e., the platform operator does not actively select or determine whether the content should be uploaded.</li><li>The liability of persons facilitating a third party’s illegal “communication to the public” (i.e., secondary liability) is governed by the national law of each Member State, not by the Copyright Directive (2001/29/EC). </li><li>An exemption under the E-commerce Directive (2000/31/EC) may apply to platform operators where they do not play an “active role” that provides them with “knowledge of, or control over” the information, when storing files on the request of platform users. This exemption does not apply where platform operators have knowledge of the illegal activity or information and do not remove or disable access to the content promptly. Therefore, once platform operators are put on notice about infringing activity, they should take steps to rectify the problem and not stay passive.</li><li>Rights holders of protected works may obtain injunctions against online platforms, without needing to show improper conduct by the platform operator. </li></ul>The Advocate General’s opinion is, however, not binding on the ECJ (although such opinions are very frequently followed) and a formal ECJ judgment will be delivered by the ECJ following the Court’s deliberations.The Digital Copyright DirectiveThe incoming Digital Copyright Directive ((EU) 2019/720) adds another level of nuance to this matter (given that it is not due to be implemented into national law in the EU until 7 June 2021, it was not applied to these cases). In accordance with the Digital Copyright Directive’s liability regime, platform operators must obtain authorisation from relevant right holders where a platform user uploads protected works. So, in theory, platform operators should no longer have to argue over whether they have any control over what content is uploaded to their platform. Operators will either have the right authorisation or not.Of course, the one wrinkle is the <a href="https://mofotech.mofo.com/topics/uk-declines-to-implement.html">UK’s decision not to implement the Digital Copyright Directive</a>. This means that platform operators with dual presences in the UK and the EU could find more freedom in operating out of UK. We will continue to monitor both the UK’s developments in this respect, as well as the final judgment by the ECJ, in case either have a notable impact on platform operators and how liability is allocated.Jai Mudhar, London Trainee Solicitor, contributed to the drafting of this alert.

Autodesk

HM Revenue and Customs

Home Office, Department for Communities and Local Government, Department of Health

Intel

ITworx

lastminute.com

NYSE-listed health tech company

One of UK's largest public EV charging networks

Phoenix Group

Telenor

UK Border Agency

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Senior Counsel

Alistair Maughan co-leads Morrison & Foerster's European Technology & Commercial Practice.

Alistair Maughan

Alistair advises on the deployment of new technology platforms involving, for example, the internet of things, AI and machine-learning, and blockchain and distributed ledger technology.

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Of Counsel

Mercedes Samavi is an associate based in the London office of Morrison & Foerster and a member of both the Technology Transactions Group and the Global Privacy Group.
Mercedes advises domestic and int

Mercedes Samavi

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Determining Liability For Illegal Uploads to Online Platforms: An ECJ Opinion Decides in Favour of Platform Operators

Determining Liability For Illegal Uploads to Online Platforms: An ECJ Opinion Decides in Favour of Platform Operators

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Online platform operators have a rare cause to be cautiously optimistic at news from the European court. In a recently-published European Court of Justice (ECJ)

Today, the Court of Justice of the European Union (“Court”) issued its judgement in the Schrems II‑case. The case relates to the validity of certain transfer mechanisms to legitimize international sharing of personal information from the EU to outside the EU. In short, the Court ruled that the Standard Contractual Clauses (“SCCs”) are valid, but that another widely used mechanism, the EU-U.S. Privacy Shield certification (“Privacy Shield”), is not.However the Court’s ruling is not as straightforward as it seems. The Court makes a number of sweeping observations relating to both the SCCs and Privacy Shield, which may very well have far wider implications to international data transfers out of the EU.  Read our <a href="https://www.mofo.com/resources/insights/200716-ruling-sccs-privacy-shield.html" target="_blank">client alert.</a>

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Few lawyers in the world have Miriam Wugmeister’s breadth and understanding of privacy and data security laws, obligations, and practices. 

Miriam H. Wugmeister | Privacy and Data Security Lawyer

Few lawyers in the world have Miriam Wugmeister's breadth and understanding of privacy and data security laws, obligations, and practices. In the words of her clients, she is “extremely practical and phenomenally smart. Just about one of the best privacy advisers there is” (Chambers USA). Co-chair of Morrison & Foerster’s market-leading Global Privacy and Data Security Group and ranked among the top in the profession by all major directories, Ms. Wugmeister is regularly called upon by some of the world’s largest and most complex multinational organizations to confront their most difficult U.S. and international privacy challenges. “Tremendous at helping you come up with practical solutions to real problems” (Chambers USA), she develops cutting-edge solutions for clients that marry legal compliance with business realities.

Miriam Wugmeister

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Managing Partner, Amsterdam and Brussels

Alex van der Wolk, co-chair of Morrison Foerster’s preeminent Global Privacy & Data Security practice and managing partner of the firm’s Amsterdam and Brussels offices, employs his nearly 20 years of experience to advise global companies on their most complex data strategies and compliance programs governing all aspects of information management. 

With more than a decade of experience, Mr. van der Wolk helps clients develop privacy strategies for digital transformations, industrial IoT, telematics, Big Data, commercial and marketing programs, a

Alex van der Wolk

Alex van der Wolk, co-chair of Morrison Foerster’s preeminent Global Privacy & Data Security practice and managing partner of the firm’s Brussels office, employs his nearly 20 years of experience to advise global companies on their most complex data strategies and compliance programs governing all aspects of information management.

The Ruling on SCCs and Privacy Shield May Not Be As Straightforward As It Seems

Today, the Court of Justice of the European Union (“Court”) issued its judgement in the Schrems II‑case. The case relates to the validity of certain transfer me

The Ruling on SCCs and Privacy Shield May Not Be As Straightforward As It Seems

From 12 July 2020, any business (whether or not EU-based) providing an online platform or search engine to business users in the EU and the UK must comply with a new EU regulation designed to promote fairness and transparency. Platform use terms may need to be re-written and must contain certain mandatory information.The EU regulation on platform-to-business relations (the “P2B regulation”) applies in all EU member states, including the UK. The P2B regulation seeks to:<ul><li>create a fair, predictable, sustainable and trusted online business environment for smaller businesses and traders on online platforms;</li><li>enhance transparency and redress obligations for business users of online platforms; and</li><li>prevent regulatory fragmentation across the EU.</li></ul>The P2B regulation applies to all online intermediation service providers and online search engines.  This includes e-commerce marketplaces, social media services, app stores and price comparison tools.  The P2B regulation also differs from much of the EU’s digital regulatory output in that the regulation is not consumer-focused: it applies to business users of online intermediation services (and corporate website users in relation to online search engines) who use those services to offer goods and services (or form contracts with) consumers in the EU.Importantly, whether or not the P2B regulation applies does not depend on the location of the platform provider or the chosen governing law of the platform.  So, Asian or U.S.-based platform providers must comply as long as their platforms or search engines are offered or provided to business users in the EU.The P2B regulation excludes online payment services, online advertising tools or online advertising exchanges, which are not provided with the aim of the facilitating the initiation of direct transactions or contractual relationships with consumers.The P2B regulation applies to me – what do I need to do?To comply with the P2B regulation, you will need to ensure that the terms & conditions for the platform are written in plain and intelligible language, are easily found and include certain information.If you are an online intermediation service provider, your terms & conditions must include, among other information:(a) a description of the grounds on which you may base your decisions to suspend, terminate or otherwise restrict the use of your services by business users;(b) information regarding the overall effects of the terms & conditions on the ownership and control of intellectual property rights of business users;(c) information on how you treat and rank goods or services offered by your company or by business users controlled by you, compared to goods and services offered by third-party business users;(d) information on how and under which conditions a business user can terminate its contractual relationship with you;(e) a description of the data access policies to provide the business user with a better understanding of the data to which your company or the business user may or may not have access;(f) information on how business users can use the internal complaint-handling system; and(g) the names of two or more mediators with whom your company and business users can engage to attempt to reach an agreement to settle, out of court, any disputes that may arise.If the P2B regulation applies, an online platform cannot suspend or terminate a business user without first providing a statement of reasons; the business user can complain, and the matter could go to mediation.If you are an online search engine, your terms & conditions must include, in a publicly available statement, a description of:(a) the main parameters that are significant in ranking all indexed websites and their relative importance;(b) the potential effects on ranking as a result of any direct or indirect remuneration paid by business users; and(c) how you treat and rank goods or services offered by your company or by business users that you control, compared to goods and services offered by third-party business users.What is the notice period for changing terms & conditions?If you need to change your terms & conditions to comply with the P2B regulation, you should notify your business users of the proposed changes at least 15 days before applying them (subject to any exceptions provided in the P2B regulation). This is the minimum notice period. If, because of the changes, business users need to make complex adaptations, a longer and more proportionate notice period should apply. This is designed to prevent significant disruption to business users’ operations due to sudden changes to terms & conditions.What can a business user do in the case of non-compliance with the P2B regulations?Any terms & conditions that are not written clearly and intelligibly will be void. Where a business user feels that the relevant terms & conditions are not satisfactory, it may:(a) use the internal complaint-handling system; during this process, an online intermediation service provider may self-determine that all or parts of its terms & conditions are not clear.(b) engage mediators, who may conclude that the terms & conditions lack the required clarity.(c) take the online intermediation service provider or search engine to court.

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The New P2B Regulation Is Out – Here’s What Your Business Needs to Know

Digital Compliance in Europe: Regulatory Alignment Post-Brexit

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From 12 July 2020, any business (whether or not EU-based) providing an online platform or search engine to business users in the EU and the UK must comply with 

The New P2B Regulation Is Out – Here’s What Your Business Needs to Know

On June 24, 2020, the New York State Department of Financial Services (“NYDFS”) announced a series of initiatives designed to provide further guidance and resources for businesses operating in, and potential new entrants into, the virtual currency industry. The initiatives represent the first major update to NYDFS’ “BitLicense” – the regulatory regime set up in 2015 that governs virtual currency activity involving New York residents and companies, including a proposed conditional licensing framework intended to authorize entities without a BitLicense to engage in virtual currency business in New York under a conditional license. Read our <a href="https://protect-us.mimecast.com/s/Br5FCjRO5BiE41JjcRgzWU?domain=www2.mofo.com">client alert.</a> A special thanks to Amani Carter for her contributions to this client alert.