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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Current State of the AI VC Financing Market

MoFo Tech Law Summit – Tech and Antitrust: Policy Shifts in the Second Trump Administration

MoFo Tech Law Summit – Responsible Tech: Policy Becomes Practice

AI Dynamics: Regulatory Landscape and Industry Insights

Introducing the MoFo Tech Law Summit – Innovation Under Regulation

With the passage of several bills that would amend the California Consumer Privacy Act of 2018 (CCPA) in the final hours of California’s legislative session, businesses are one step closer to knowing what the law will look like when it becomes operative on January 1, 2020. The amendments usher some business-friendly provisions, including a partial exemption for personal information (PI) pertaining to job applicants, employees, owners, directors, officers, medical staff, or contractors of a business (though there is a one-year sunset provision for this exemption and it does not apply to CCPA’s private right of action), and a partial one-year exception for PI collected in the context of certain business-to-business (B-to-B) transactions. Read our <a href="https://protect-us.mimecast.com/s/MHDeCR65kXUq8JYMTND27g">client alert.</a>

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CCPA Taking Shape: Several Amendments Pass as California’s Legislative Session Comes to a Close

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With the passage of several bills that would amend the California Consumer Privacy Act of 2018 (CCPA) in the final hours of California’s legislative session, bu

CCPA Taking Shape: Several Amendments Pass as California’s Legislative Session Comes to a Close

A recent decision from the Ninth Circuit Court of Appeals in a dispute between LinkedIn and hiQ Labs has spotlighted the thorny legal issues involved in unauthorized webscraping of data from public websites. While some may interpret the LinkedIn decision as greenlighting such activity, this would be a mistake. On close review of the decision, and in light of other decisions that have held unauthorized webscrapers liable, the conduct remains vulnerable to legal challenge. Read our <a href="https://protect-us.mimecast.com/s/oovYCQW5jXijm6J8cP6LZP">client alert.</a>

L.W. v. Snap Inc.,  675 F. Supp. 3d 1087 

Wamai v. Industrial Bank of Korea , 2021 WL 3038402 

In re Maxus Energy Corp.

In re Energy Future Holdings Corp.

James Paul McCartney v. Sony/ATV Publishing LLC

NFL Enterprises LLC v. EchoStar Satellite LLC

VOOM HD Holdings LLC v. EchoStar Satellite LLC

Change Healthcare Operations, LLC v WebMD Health Corp. 2017 WL 6610411  

Register.com, Inc. v. Verio, Inc.

Komag, Inc. v. Asahi Glass Co. Ltd.

Asante Techs. Inc. v. PMC–Sierra, Inc.

Biovail Corp. v. S.A.C. Capital Mgmt. 2009 WL 2844404 

Multi–Faceted Investigation of University Grants

Confidential International Arbitrations

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Alex advises on all aspects of complex commercial litigation in federal and state trial and appellate courts and in arbitration. He has represented U.S. and international clients in actions involving 

J. Lawrence

J. Alexander Lawrence

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Ninth Circuit’s LinkedIn Decision Does Not Greenlight the Unauthorized Webscraping of Public Websites

The Madden Saga Continues: On Remand, Madden Survives Summary Judgment and District Court Certifies Class

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A recent decision from the Ninth Circuit Court of Appeals in a dispute between LinkedIn and hiQ Labs has spotlighted the thorny legal issues involved in unautho

Ninth Circuit’s LinkedIn Decision Does Not Greenlight the Unauthorized Webscraping of Public Websites

Gone are the days that employees work from only one location from 9:00 a.m. to 5:00 p.m. With employees traveling throughout the U.S., and in many instances, having some employees telecommuting, a company must be diligent. These mobile employees can give rise to potential state and local tax obligations for the employers in unexpected jurisdictions and create tax compliance challenges for even the most diligent employers. Read our <a href="https://protect-us.mimecast.com/s/BHF2CJ67z1UEyj13czXzBL">newsletter</a> to learn more about SALT considerations for a mobile workforce.

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Challenges of a Mobile Workforce

Paying Employees in Cryptocurrency: Is That Lawful? 

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Gone are the days that employees work from only one location from 9:00 a.m. to 5:00 p.m. With employees traveling throughout the U.S., and in many instances, ha

Challenges of a Mobile Workforce

Last week, the Federal Trade Commission made clear that child-directed parts of an otherwise general audience service will subject the operator of the service to COPPA. Just six months after the FTC’s record-setting settlement against TikTok, the FTC announced a $170 million fine against Google and its subsidiary YouTube to settle allegations that YouTube had collected personal information from children without first obtaining parental consent, in violation of the FTC’s rule implementing the Children’s Online Privacy Protection Act (COPPA). This $170 million fine — $136 million to the FTC and $34 million to the New York Attorney General, with whom the FTC brought the enforcement action — dwarfs the $5.7 million levied against TikTok earlier this year. It is by far the largest amount that the FTC has obtained in a COPPA case since Congress enacted the law in 1998. The settlement puts operators of general-audience websites on notice that they are not automatically excluded from COPPA’s coverage: they are required to comply with COPPA if particular parts of their websites or content (including content uploaded by others) are directed to children under age 13. Read our <a href="https://protect-us.mimecast.com/s/PoOECrkMBpUlnMDlfz5KMV">client alert.</a>

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

The Company Who Cried “General Audience”: Google and YouTube to Pay $170 Million for Alleged COPPA Violations

Last week, the Federal Trade Commission made clear that child-directed parts of an otherwise general audience service will subject the operator of the service t

The Company Who Cried “General Audience”: Google and YouTube to Pay $170 Million for Alleged COPPA Violations

Artificial intelligence (AI) has become one of the most disruptive technologies of our era. For many technology companies and startups, AI constitutes the core of their prized products, from autonomous vehicles to pick-and-place robots to voice assistants. With the rapid development of AI comes a unique set of challenges to protect it via the patent system in the United States. Fortunately, the U.S. Patent and Trademark Office (USPTO) is working diligently to provide guidelines for patent practitioners to make the path to patentability less uncertain. On August 27, the USPTO published a <a href="https://www.federalregister.gov/documents/2019/08/27/2019-18443/request-for-comments-on-patenting-artificial-intelligence-inventions">Notice </a>in the Federal Register requesting information from the public on AI patent-related issues, including feedback on questions pertaining to the intersection of AI and patent law.The AI academic and industrial community is likely to have many unique perspectives on these and other questions as the application of AI spans numerous technology sectors. Input from all technology sectors, as well as the patent practitioners representing these sectors, is certain to aid the USPTO in developing guidance that will provide a more predictable path to navigate patenting of AI technologies.

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Of Counsel

Anna Yuan’s practice focuses on patent prosecution, IP due diligence, post-grant proceedings, and IP litigation support. 

Anna Yuan

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Karen Potter is a partner in Morrison & Foerster’s Life Sciences Patent group. Her practice focuses on patent preparation, prosecution, and strategic counseling for start‑up, emerging, and established

Karen G Potter Ph.D.

Karen Potter

AI Patent Policy – Calling All Technology Practitioners

Artificial intelligence (AI) has become one of the most disruptive technologies of our era. For many technology companies and startups, AI constitutes the core 

AI Patent Policy – Calling All Technology Practitioners

The latest in a string of U.S. government (USG) actions restricting the use of Chinese technology in the U.S. supply chain is an interim rule issued by the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) implementing the first phase of Section 889 of the FY2019 National Defense Authorization Act (NDAA). This rule, which goes into effect on August 13, 2019, prohibits federal agencies from buying “covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system” from designated Chinese entities, including Huawei Technologies Company Ltd. (Huawei) and ZTE Corporation (ZTE), and several providers of video surveillance equipment and services. We detail this proscription below and summarize how the rule shifts the compliance burden to government contractors.  Read our <a href="https://protect-us.mimecast.com/s/YwS2CAD9WrHq5mznc9GDUQ">client alert.</a>

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Senior Advisor, National Security

Joseph Benkert is a senior advisor  in Morrison & Foerster’s National Security practice group. He advises  clients on critical national security matters pertaining to the Committee on  Foreign Investm

Joseph Benkert

Joseph A. Benkert

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Charles Capito is a partner in both Morrison Foerster’s National Security and Government Contracts + Public Procurement practices.
In the National Security space, he has significant experience couns

Charles L. Capito

Charles Capito

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New Rule Implementing NDAA Prohibition: U.S. Agencies Cannot Enter Contracts That Use Chinese Telecom Technology

Tune in, catch up: EU changes to TV and radio transmission rules

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The latest in a string of U.S. government (USG) actions restricting the use of Chinese technology in the U.S. supply chain is an interim rule issued by the Depa

New Rule Implementing NDAA Prohibition: U.S. Agencies Cannot Enter Contracts That Use Chinese Telecom Technology

Morrison & Foerster surveyed intellectual property decision-makers from more than 50 companies with revenues greater than $750 million each. The study showed that, while intellectual-property litigation has decreased by 26% since 2015, the amount that companies spend on intellectual-property litigation is higher than ever. Morrison & Foerster’s Benchmarking IP Litigation 2019 report offers important insights into this change and a list of questions that companies will want to ask themselves in the face of increased IP litigation spending.IP litigation spend has increased to $3.3 billion from $1.7 billion in 2005. That uptick is due to several factors, including the larger damage awards that typically result from patent-infringement lawsuits asserting multiple claims. These multi-claim, patent-infringement suits have become popular because they decrease the risk of an entire patent-infringement suit being dismissed.The globalization of markets and supply chains is also playing a part in the amount companies are spending on IP litigation. Because patent disputes like the smartphone patent wars are increasingly likely to play out around the world, companies must locate and hire counsel in multiple jurisdictions to develop cross-market strategies.Navigating multinational laws and judicial systems is becoming even more necessary as an increasing number of IP litigants file overseas in countries including China, which is known for the speed of its dispute-resolution processes and its available injunctive remedies.For a list of questions that can help your company prepare for the globalization of patent litigation and mitigate risks inherent in the higher cost of litigating patent cases, read the study that Morrison & Foerster commissioned: Benchmarking IP Litigation 2019.<iframe src="https://www2.mofo.com/l/323401/2019-08-06/4t9b6" width="100" height="500" type="text/html" frameborder="0" allowtransparency="true" style="width: 100; height: 500;border-top-width: 0px;border-right-width: 0px;border-bottom-width: 0px;border-left-width: 0px;border-top-style: initial;border-right-style: initial;border-bottom-style: initial;border-left-style: initial;border-top-color: initial;border-right-color: initial;border-bottom-color: initial;border-left-color: initial;border-image-source: initial;border-image-slice: initial;border-image-width: initial;border-image-outset: initial;border-image-repeat: initial;" title="iframe"></iframe>

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Preparing for the Increased Globalization of IP Litigation

Supreme Court Restricts the Extraterritorial Reach of U.S. Patent Law for Exported Goods

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Morrison & Foerster surveyed intellectual property decision-makers from more than 50 companies with revenues greater than $750 million each. The study showed th

Preparing for the Increased Globalization of IP Litigation

In the third episode of “Understanding Blockchain,” Morrison & Foerster’s Susan Gault-Brown and Dario de Martino discuss one of blockchain’s foundational technologies – cryptography.This ongoing series is dedicated to providing an overall understanding of blockchain technology and how companies can use it to share, store, and record valuable data through a secure, immutable network.Watch our video <a href="https://www.mofo.com/resources/video-audio/190805-what-is-cryptography.html">here</a>.

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Understanding Blockchain - What is Cryptography?

A Rush to Patent the Blockchain Is a Sign of the Technology’s Promise

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In the third episode of “Understanding Blockchain,” Morrison & Foerster’s Susan Gault-Brown and Dario de Martino discuss one of blockchain’s foundational techno

Understanding Blockchain - What is Cryptography?

Advancements in technology appear to have spurred the Federal Trade Commission to initiate a review of its rule promulgated pursuant to the Children’s Online Privacy Protection Act (the “COPPA Rule” or “Rule”) four years ahead of schedule. Last week, the FTC published a Federal Register <a href="https://www.govinfo.gov/content/pkg/FR-2019-07-25/pdf/2019-15754.pdf" target="_blank">notice</a> seeking comments on the Rule. Although the FTC typically reviews a rule only once every 10 years and the last COPPA Rule review ended in 2013, the Commission unanimously voted 5-0 to seek comments ahead of its next scheduled review. The Commission cited the education technology sector, voice-enabled connected devices, and general audience platforms hosting third-party, child-directed content as developments warranting reexamination of the Rule at this time.BackgroundThe COPPA Rule, which first went into effect in 2000, generally requires operators of online services to obtain verifiable parental consent before collecting personal information from children under the age of 13.  In 2013, the FTC amended the COPPA Rule to address changes in the way children use and access the internet, including through the increased use of mobile devices and social networking.  Its amendments included the expansion of the definition of “personal information” to include persistent identifiers that track online activity, geolocation information, photos, videos, and audio recordings. The new review could result in similarly significant amendments.Questions for Public CommentIn addition to standard questions about the effectiveness of the COPPA Rule and whether it should be retained, eliminated, or modified, the FTC is seeking comment on all major provisions of the Rule, including its definitions, notice and parental consent requirements, exceptions, and security requirements. The Federal Register notice poses 29 wide-ranging questions for public comment, including:<ul><li>Should general audience platforms that have large numbers of child users be subject to the COPPA Rule?  In other words, should the COPPA Rule be amended to address online services that do not meet the current definition of “web site or online service directed to children” but that have large numbers of child users?  </li><li>Should the COPPA Rule be modified to encourage general audience platforms to identify and police child-directed content uploaded by third parties? For example, should such platforms be able to rebut the presumption that all users interacting with child-directed content are children, thereby allowing them to collect personal information from users who are 13 or older?</li><li>Should the COPPA Rule expressly address behavioral targeting, profiling, and advertising? Information processing to support the internal operations of an online service is exempt from the Rule’s parental consent obligation. Should “support for internal operations” be modified to (1) expressly exclude practices such as behavioral targeting and profiling or (2) add certain permitted activities, such as advertising attribution?</li><li>Should the definition of “personal information” be expanded? Presumably to keep pace with the rise of “big data” and the collection of biometric information, the Commission asks whether the definition should be expanded to include personal information that is inferred about, but not directly collected from, children and biometric information (e.g., fingerprints, retinal patterns).</li><li>Should the COPPA Rule be more specific about the appropriate methods for determining the age of users? In other words, would additional guidance regarding age screening result in stronger protections for children’s privacy?</li><li>Should methods of obtaining verifiable parental consent be added to or removed from the Rule?</li><li>Should there be additional exceptions to prior parental consent? The FTC is particularly interested in comments on exceptions for (1) the use of education technology, where the school provides consent for the collection of personal information from children, and (2) the collection of audio files containing a child’s voice as a replacement for text, where the audio files are promptly deleted.</li><li>Should the Rule include more specific information security requirements, such as requiring encryption of certain personal information?</li><li>What are the implications for COPPA enforcement raised by technologies such as interactive television, interactive gaming, or other similar interactive media?</li></ul>The FTC’s questions evince awareness of technological developments since the FTC’s last review in 2013 and reflect a concern for how to apply COPPA protections when children under 13 are increasingly agile with technology and may visit websites and online services that are targeted to a general audience. The questions further evidence the Commission’s exploration of how to employ modern technological capabilities in COPPA compliance, including through up‑to-date solutions for age screening and information security. Ultimately, the FTC’s notice shows the FTC’s continued commitment to children’s privacy matters, suggesting more frequent review of the COPPA Rule if necessary to keep pace with technological advances and potentially increased activity in this sphere.How to Submit a CommentComments can be submitted on or before October 23, 2019. Comments may be submitted online at <a href="https://www.regulations.gov/" target="_blank">https://www.regulations.gov</a> or sent by mail to the address listed in the Federal Register notice.The FTC will hold a <a href="https://www.ftc.gov/news-events/events-calendar/future-coppa-rule-ftc-workshop" target="_blank">public workshop</a> on October 7, 2019, to examine the COPPA Rule.The FTC’s press release announcing the request for public comment is available <a href="https://www.ftc.gov/news-events/press-releases/2019/07/ftc-seeks-comments-childrens-online-privacy-protection-act-rule?utm_source=govdelivery" target="_blank">here</a>.

Back to School Early: FTC Seeks Comments to COPPA Rule Ahead of Schedule

Advancements in technology appear to have spurred the Federal Trade Commission to initiate a review of its rule promulgated pursuant to the Children’s Online Pr

Back to School Early: FTC Seeks Comments to COPPA Rule Ahead of Schedule

The Department of Defense is actively pursuing “Other Transactions” (OTs) instead of procurement contracts. This allows DOD and its contractors to avoid many of the most burdensome aspects of the procurement regulations. But it also allows for even more confusion than usual about how to handle intellectual property rights, particularly rights in technical data and computer software, because there are no “standard” IP clauses for OTs.Morrison & Foerster partner Jay DeVecchio has written a Briefing Paper, published by Thomson Reuters, that sorts out these issues and offers clear, practical advice. With Thomson Reuters’ permission we have attached Jay’s paper, which we hope will assist you in your OT negotiations.<a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltefaca2a1a876415e/627317ca0d4d8e1d7f10f312/190701-dod-data-rights-ip-simplified.pdf">Read the Briefing Paper</a>.This material from Briefing Papers has been reproduced with the permission of the publisher, Thomson Reuters.