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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News and thought leadership from lawyers who are adding value to the legal profession and the communities we call home.

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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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Strengthened AI Oversight in the Netherlands

Transforming Tomorrow: The Rise of AI in the Workplace

Current State of the AI VC Financing Market

The Bad Guys Have AI, Too

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

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The Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), which became law on August 13, 2018, effected sweeping change to the authority and processes of the Committee on Foreign Investment in the United States (“CFIUS”). Many of FIRRMA’s most significant changes were not effective immediately, however, as they are subject to rulemaking by the Department of the Treasury. If there were any questions whether Treasury would let the regulatory process initiated by FIRRMA linger, those questions were just answered with the release of unprecedented new CFIUS regulations that include possible multi-billion dollar fines across almost 30 critical technology-related industries, and provisions that make filing certain notifications with CFIUS mandatory. Read our <a href="https://protect-us.mimecast.com/s/XqlQCv29RwtZBQnJTzQpia">client alert</a>.

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Of Counsel

Bob Litt, former General Counsel for the Director of National Intelligence, is of counsel and co-chair of Morrison & Foerster’s Global Risk and Crisis Management group. He advises industry-leading org

Robert S. Litt

Robert Litt

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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 CFIUS Pilot Program Expands U.S. Government Review of Tech Transactions

California Supreme Court Clarifies Standards for Whistleblower Claims Under California Labor Code Section 1102.5

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The Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), which became law on August 13, 2018, effected sweeping change to the authority and proc

New CFIUS Pilot Program Expands U.S. Government Review of Tech Transactions

Just over a month after the EU General Data Protection Regulation (GDPR) took effect, California passed its own sweeping privacy legislation, the California Consumer Privacy Act of 2018.The Act stands to affect countless global companies doing business in California, many of which recently devoted extensive time and resources to GDPR compliance. These companies must now determine what additional steps are necessary to comply with the Act by the time it takes effect on January 1, 2020.Join Socially Aware contributors Christine Lyon and Julie O’Neill on Thursday, September 20, 2018, for a deep dive into the key similarities and differences between the GDPR and the Act, as well as practical steps companies can take to assess gaps and chart a path to compliance. The areas they expect to cover include:<ul><li>Notice requirements</li><li>Access and portability</li><li>Deletion</li><li>Opt-outs</li><li>Discrimination</li></ul>

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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).

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Privacy Across the Atlantic: Comparing the EU GDPR and California Consumer Privacy Act of 2018 - A Morrison & Foerster Data Protection Webinar

Biometric Information as Personal Information In A Brave New World of Regulatory Compliance

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Just over a month after the EU General Data Protection Regulation (GDPR) took effect, California passed its own sweeping privacy legislation, the California Con

Privacy Across the Atlantic: Comparing the EU GDPR and California Consumer Privacy Act of 2018 - A Morrison & Foerster Data Protection Webinar

Many states and localities are concerned that the proliferation of streaming services is shrinking tax revenues previously received from sales of traditional forms of entertainment.  Those concerns are not unfounded.  The rapid development of streaming services has drastically changed how people watch “television.”  It is now estimated that over 56 million U.S. adults either have cancelled or never subscribed to traditional cable or satellite television service, while the number of Americans who subscribe to Netflix now equals the number of Americans who have a traditional television service subscription.  Meanwhile, streaming music services now generate the majority of the industry’s revenue.Thus, it is not surprising that many jurisdictions have taken a variety of approaches to subject sales of streaming services to sales taxes and excise taxes.  And now that the U.S. Supreme Court has ruled that there is no physical presence requirement for a state to impose a sales tax collection obligation on sellers, all companies offering streaming services should pay even closer attention to the state and local tax landscape—even if the streaming service is only a small part of a larger business.  Notably, in a state or locality that imposes sales taxes or excise taxes on streaming services, a company’s otherwise non-taxable services may become taxable if the company decides to include a streaming service as part of a bundled offering for a single price, even if the streaming service is not used or desired by a particular purchaser.Some jurisdictions, including Pennsylvania, have passed legislation amending their sales tax laws to specifically tax streaming services.  However, similar legislative efforts have proven less successful in other jurisdictions.  For example, a proposal in Virginia to expand the state’s communications sales tax to streaming entertainment services was overwhelmingly rejected by a Virginia House of Delegates committee earlier this year.  Meanwhile, the general unpopularity of taxes on streaming television services has inspired legislative proposals to explicitly exclude such services from tax.Taxing authorities in other jurisdictions have attempted to apply existing sales tax and excise tax laws to reach streaming services by issuing guidance such as letter rulings and publications.  For example, in a 2018 Private Letter Ruling, the Texas Comptroller found that a streaming video service was subject to sales tax as a “cable television service.”  The Florida Department of Revenue has issued guidance stating that, while sales and rentals of streaming videos are not subject to sales tax, rentals of streaming videos are subject to the State’s communications services tax as a “video service.”  Even more confusing, the Florida guidance states that sales (as opposed to rentals) of streaming videos are not subject to Florida’s communications services tax because the sales would qualify as a nontaxable “information service.”  Localities are also attempting to tax streaming services, even when the state is not.  For example, although Illinois does not currently impose tax on streaming services, the City of Chicago’s Comptroller released guidance stating that the City’s excise tax on admission fees or other charges paid for the privilege to enter, witness, view, or participate in “amusements” applies to certain streaming services. Any company that offers streaming services should be aware of the taxing authority’s position in each jurisdiction where the company has customers, even if the company has no other “presence” in that jurisdiction.  Importantly, however, companies should also be aware that a taxing authority’s position is subject to challenge.  Judicial challenges of taxes on streaming services are ongoing in Chicago and Pennsylvania.  Notably, at least one state’s attempt to impose existing taxes on streaming services was rejected.  In Kentucky, a state circuit court overturned the Department of Revenue’s audit assessment that subjected a streaming service company’s revenues from Kentucky customers to the same excise taxes applicable to traditional pay television providers. If your company offers a streaming service, now is the time to closely examine your tax compliance efforts.  In the wake of the U.S. Supreme Court’s recent decision in South Dakota v. Wayfair, Inc., which overruled over 50 years of precedent and found that the U.S. Constitution does not require a physical presence in a taxing state in order for the state to impose a sales and use tax collection obligation on an out-of-state seller, jurisdictions will likely be more aggressive in seeking sales tax from companies offering purportedly taxable services over the Internet.  And don’t forget that continued vigilance will be necessary, as jurisdictions continue to investigate whether or how to subject streaming services to sales taxes and excise taxes.

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Rebecca Midori Ulich-Balinskas is of counsel in the State and Local Tax Group in Morrison & Foerster’s New York office. Her practice focuses on state and local tax controversies at the audit, administ

Rebecca Balinskas

Rebecca M. Balinskas

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If Your Company Offers Streaming Services, You Should Be Aware that States and Localities Are Taking Different Approaches to Taxing Such Services

The FCC “Opts-In” to Consumer Privacy with New Rules for Internet Service Providers

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Many states and localities are concerned that the proliferation of streaming services is shrinking tax revenues previously received from sales of traditional fo

If Your Company Offers Streaming Services, You Should Be Aware that States and Localities Are Taking Different Approaches to Taxing Such Services

Legislation that would substantially overhaul the law governing the Committee on Foreign Investment in the United States (CFIUS) received unanimous committee approvals in the House and Senate today. The proposed legislation (known as “FIRRMA,” for the Foreign Investment Risk Review Modernization Act of 2018) was initially introduced last fall. Its major provisions include enhancements to CFIUS’s enforcement authorities and a particular focus on high-tech sectors and “critical technologies.”The new versions of the bill in the House and Senate have removed one of the more controversial portions of the legislation, which would have given CFIUS the authority to review certain contributions by U.S. “critical technology companies” of their intellectual property to foreign companies through arrangements such as joint ventures. Although that provision has now been removed, FIRRMA may still restrict certain outbound transactions by U.S. companies through new provisions strengthening the U.S. export controls regime. The legislation could be passed by Congress and signed by the president as early as this summer.

Revised CFIUS Bill Receives Unanimous Approval in House and Senate Committees; Increases Export Controls for “Critical Technologies”

Legislation that would substantially overhaul the law governing the Committee on Foreign Investment in the United States (CFIUS) received unanimous committee ap

Revised CFIUS Bill Receives Unanimous Approval in House and Senate Committees; Increases Export Controls for “Critical Technologies”

Since 2015, the European Union has been gradually implementing a series of reforms designed to create a Digital Single Market across the EU. In setting its reform agenda, the European Commission looked beyond areas traditionally associated with the regulation of technology and digital services, and proposed changes in sectors that it believes have a significant effect on the pattern of EU cross-border digital trade. One such area was tax policy.By 2021, the EU will implement a series of measures that are designed to significantly improve how companies operating online calculate VAT in the EU. This is the result of a unanimous vote of approval from the EU legislative bodies for a package of proposals that will incentivize cross-border trade, combat VAT fraud (especially by non-EU actors), ensure fair competition for EU businesses, and provide equal treatment for online publications.Read our <a href="https://protect-us.mimecast.com/s/aGi0C5y1VMCVg2R3FVH7tY">client alert</a>.

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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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Trevor has over 30 years of experience in providing corporate and international tax advice. His practice focuses on advising client on the tax planning aspects of international transactions and strat

Trevor James

Trevor L James

EU Digital Market VAT Reform

Since 2015, the European Union has been gradually implementing a series of reforms designed to create a Digital Single Market across the EU. In setting its refo

EU Digital Market VAT Reform

Linear TV and radio services are increasingly being consumed via the internet. Technical developments allowing the on-demand consumption of audio and audio-visual content on different user devices have also changed viewer habits resulting in linear TV content that can also be viewed at times chosen by the users themselves via catch-up or instant restart services.The EU is in the process of working out how the 1993 EU Cable and Satellite Directive ought to be adapted to the modern digital world. While the EU’s proposals will not abolish territorial licensing of TV and radio content in favour of a single pan-European license, the EU will re-consider how the country-of-origin principle and the mandatory collective rights management of the cable-retransmission rights established by the existing EU legal regime can be expanded to new TV and radio retransmission technologies such as IPTV and WebTV.This new regulation will affect creators and producers of audio-visual content intended for distribution via linear services and channels, traditional TV and radio networks, as well as all distributors of TV and radio programmes and channels (including cable, satellite, IPTV and OTT network and services operators) with operations in the European Union.

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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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.

DocuSign, Inc

enercity AG

SoftBank Vision Fund

TDK and its subsidiary EPCOS

Tele Columbus

United Internet/1&1

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Kristina has more than 20 years of experience advising clients across many industries, including the software, internet, mobility, media, and consumer electronics industries, with a particular focus o

Kristina Ehle

Kristina Ehle has more than 20 years of experience advising clients across many industries, including the software, internet, mobility, media, and consumer electronics industries, with a particular focus on technology-driven and IP-heavy transactions.

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

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

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Linear TV and radio services are increasingly being consumed via the internet. Technical developments allowing the on-demand consumption of audio and audio-visu

With over $8.8B raised via Initial Coin Offerings (ICOs) since 2014, and over 1,200 tokens in circulation with a combined market capitalization of over $300B, it’s not surprising that ICOs are an increasingly popular fundraising tool. In this post, we discuss eight key items to consider before staging an ICO.1. Security v. Utility. Tokens are not a homogeneous asset class –– they may feature characteristics of securities, commodities, currency units, or a combination thereof. As a result, the legal analysis relating to a particular token may involve multiple regulatory regimes. Irrespective of whether a token has a consumptive purpose and may be characterized as a “utility token” by its issuer, the SEC repeatedly stated that “Whether or not a particular transaction involves the offer and sale of a security—regardless of the terminology used—will depend on the facts and circumstances, including the economic realities of the transaction,” and confirmed that ICOs would be analyzed under the facts-and-circumstances test outlined in SEC v. W.J. Howey Co.2. The Howey Test. The U.S. Supreme Court in Howey developed a four-pronged test for evaluating whether a particular instrument constitutes an “investment contract.” An instrument is an “investment contract” under the Howey test where there exists: (a) an investment of money; (b) in a common enterprise; (c) with an expectation of profits; and (d) to be derived solely from the efforts of others.It is worth noting that the concept of “investment contract” embodies a flexible principle that is capable of adaptation to meet the countless and variable constructs developed by contractual arrangements over time.3. U.S. Federal Securities Laws. The Securities Act requires that securities be offered and sold only (i) if registered with the SEC or (ii) in transactions exempt from, or not subject to, registration under the Securities Act. Several ICOs have been conducted in reliance on Rule 506(c) or Tier 2 of Regulation A+.  Each exemption features characteristics and imposes certain limitations on an ICO; therefore issuers should take care in determining which exemption is best suited for their needs. For a summary comparison of the main features of these two exempt offering alternatives, see “Do You Want to Launch an ICO? Please, Listen to the SEC” (February 8, 2018).4. The Regulators are Watching. The level of attention paid to ICOs at the SEC has dramatically increased in the last six months, as reflected by a number of enforcement actions and guidance provided to market participants. Conducting an ICO within the United States without complying with the U.S. federal securities laws or relying on an applicable exemption could expose an issuer to rescission rights and a variety of remedies in enforcement actions brought by the SEC (including disgorgement of any profits, and civil and criminal penalties).5. Timeline. Depending on the securities offering exemption chosen by an issuer and a variety of other factors that are unique to each transaction, the timeline to conduct an ICO may range from 4-8 weeks for an ICO conducted in reliance on Rule 506(c), to about 12-16 weeks for an ICO conducted in reliance on Tier 2 of Regulation A+. 6. The White Paper. The process for undertaking an ICO typically originates with the preparation of a whitepaper. Drafting a whitepaper is, in and of itself, a time consuming endeavor.  The question of what exactly should be included in a whitepaper merits a separate discussion, but generally speaking a well-developed white paper should include, at a minimum (a) a thorough description of a problem, (b) a detailed explanation of how the blockchain project is expected to provide a solution, (c) a technical description of the architecture (mathematical formulas and computer code), (d) development plans, (e) use of funds, (f) tokens economics, (g) information on the team, including (ideally) their experience with blockchain and crypto assets, (h) risk factors, and (i) legal notices.7. Online Presence. Assuming general solicitation and advertisement are permitted, the vast majority of marketing for ICOs takes place online, via website landing pages and social media profiles. For this reason, it is important to establish and maintain a uniform online presence from a project’s inception. Securing the domain name for a website and building cohesive profiles on multiple social media platforms is critical, as these are the nodes through which potential investors and members of the blockchain community will stay abreast of the project’s progress.  In addition, a consistent name across all media platforms will reduce the risk of imposters deceiving investors into sending their investments to their wallets rather than to the issuer’s wallet. On a similar note, it is important to engage with community channels and forums (i.e., BitcoinTalk, Discord, Slack, Telegram, etc.).8. Token Generation. Choosing a blockchain platform is a topic that deserves its own discussion, but for purposes of this blog, it is worth noting that depending on the complexity of the programming capabilities required for a given token, many ICOs have taken place on the Ethereum network using ERC20 tokens, or on the Stellar network. A special thanks to corporate paralegal Camille Houle for her contributions to this post.