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Michigan IT Lawyer a Publication of the State Bar of Michigan Information Technology Law Section

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Michigan IT Lawyer a Publication of the State Bar of Michigan Information Technology Law Section State Bar of Michigan Michigan IT Lawyer A Publication of the State Bar of Michigan Information Technology Law Section http://www.michbar.org/computer Table of Contents Bits and Bytes from the Chair November 2009 . Vol. 26, Issue 6 By Jeremy D. Bisdorf, Jaffe Raitt Heuer & Weiss PC . Second Annual Information Technology Law Seminar ...............................................................2 . Recent Developments in Information The end of 2009 is quickly approaching. As Fall in Michigan enters its last Technology Law ..................................................3 stages, our days become more frequently filled with cloud cover and we see very little daylight as we frequently head to and from our weekly activities in . Meet a Section Member ......................................8 the dark. Where does the time go? . Quanta Computer, Inc. v. LG Electronics, For the Information Technology Law Section, at least some of that time has Inc.: The Supreme Court Revisits The Patent been spent on Section activities and early planning efforts for the next year. Exhaustion Doctrine. Is It Time To Re-Think Mary Ann Wehr recently attended a State Bar Section Fair in Grand Rapids Your Sales And Licensing Strategies? ................9 for Cooley Law School students on behalf of our Section. We completed our . Court Rules Red Flags Rule Does Not Apply ICLE Seminar Event in Plymouth, Michigan and received high marks from the to Lawyers .........................................................26 attendees. We have planned this year’s goals during our first Section Council Meeting. Publicly Available Websites for IT Lawyers ....27 During the next few months we will all be watching the Supreme Court to see how it will handle the Bilski case and any changes that may result to soft- ware related patents. Further, our Section is evaluating whether or not it should take a position for or against recent suggested amendments to the Michigan Uniform Electronic Transactions Act. Please keep an eye on this newsletter and our Section’s website for updates on these important matters. Our spring networking event may be subject to some changes as a result of Michigan IT Lawyer is published every other month. our efforts to promote our Section’s dual missions of recruiting more members Previously published issues of the Michigan IT Lawyer, and its predecessor the Michigan Computer Lawyer, to the Section and to better facilitate the networking opportunities among the are available at http://www.michbar.org/computer/ existing members. While prior networking events have certainly been success- newsletters.cfm. If you have an article you would like ful, it is always important to keep things “fresh” and appealing to the member- considered for publication, send a copy to: ship. I am looking forward to hearing the suggestions of the committee as to Brian A. Hall any changes to the event that they may recommend. We will pass that informa- Traverse Legal, PLC tion along as soon as the Council makes some decisions. 810 Cottageview Drive Suite G-20 Looking forward to seeing you soon. Have a wonderful holiday season. Traverse City, Michigan 49684 e-mail: [email protected] Jeremy D. Bisdorf Chairperson, Information Technology Law Section [email protected] Michigan IT Lawyer Second Annual Information Technology 2009-2010 Law Seminar Information Technology Section Council Chairperson . Jeremy D. Bisdorf Chairperson-elect . Mark G. Malven By John Di Giacomo, Traverse Legal, PLC Secretary . Charles A. Bieneman Treasurer . Karl A. Hochkammer The 2nd Annual Information Technology Law Seminar was held on Thursday, COUN C IL ME M BERS October 29, 2009 at the Inn at St. John’s in Plymouth, and physical and virtual Charles A. Bieneman attendees were greeted with an interesting set of speakers on a variety of areas Jeremy D. Bisdorf William Cosnowski, Jr. that fit this year’s topic of ‘Core Legal Issues in a High Tech Business World’. The Donald M. Crawford moderator for the seminar was Charles A. Bieneman. After a brief welcome, Jeanne M. Dunk attendees used hand-held fobs to vote on various topics concerning the Informa- Samuel Frederick Brian A. Hall tion Technology Section of the State Bar, including the location of future meetings Karl A. Hochkammer (Metro Detroit won overwhelmingly). Three presenters spoke in each of two Matthew M. Jakubowski sessions, and each session allotted time for attendees to ask the speakers further William J. Lamping, Jr. questions. Mark G. Malven Ronald S. Nixon To open the first session, Robert S. Gurwin, counsel for America Online, Carla M. Perrota gave an interesting presentation on “The Legal Landscape of Web 2.0.” Robert Vincent I. Polley Claudia Rast gave an introductory definition of Web 2.0 and proceeded to discuss the legal David R. Syrowik issues facing business models that utilize Web 2.0 services, including copyright John L. Tatum infringement, Communications Decency Act § 230 issues, defamation issues, Mary Ann Wehr electronic communications policies in employment contracts, and product dispar- Immediate Past Chair agement. Robert commented on the recent Lori Drew MySpace case, as well as Christopher J. Falkowski other principal cases implicating Web 2.0 issues. Ex-Officio Beth A. Mier, senior counsel at CSC Covansys Corp. gave the second Claudia V. Babiarz Thomas Costello, Jr. presentation of the first session. Beth spoke on the allocation of risk in technical Kathy H. Damian service agreements, and segmented these risks into financial, operational, and Christopher J. Falkowski legal risks. Beth discussed practical considerations for negotiating the key terms Robert A. Feldman Sandra Jo Franklin of the service agreements, including having the appropriate experts available, Mitchell A. Goodkin managing the negotiating team, and keeping long-term goals in mind. Beth also William H. Horton provided an overview of important clauses, such as limitations of liability, indem- Lawrence R. Jordan Charles P. Kaltenbach nifications, and savings clauses. Michael S. Khoury Next, Robert L. Rothman, president of Privacy Associates International dis- J. Michael Kinney Edward F. Langs* cussed privacy issues involved in cross-border data transfers. He discussed the Thomas L. Lockhart philosophical differences between the US and European Union views of data Janet L. Neary privacy, and how the EU considers privacy a fundamental human right. Rob- Kimberly A. Paulson Paul J. Raine ert discussed the implications of moving data across national borders, using a Jeffrey G. Raphelson hypothetical involving a corporate employee list, and discussed issues relating to Frederick E. Schuchman III contracting with foreign information technology suppliers. Steven L. Schwartz Carol R. Shepard The first speaker of the second session was Charles R. (Rod) Marvin Jr., the Anthony A. Targan managing member at Dykema’s Washington D.C. office. Rod spoke on how to Stephen L. Tupper avoid problems when contracting with the government, including actual and Commissioner Liaison apparent authority issues when licensing software to the federal government, James N. Erhart termination on convenience clauses in government contracts, and choice of law Newsletter Co-Editors clauses and their relation to jurisdiction in the Federal Court of Claims. Brian A. Hall Michael Gallo William T. Casey, an attorney for Hewlett Packard Enterprise Services, *denotes deceased member spoke on the benefits and risks of open source software. William discussed 2 . Vol. 26, Issue 6 . November 2009 Michigan IT Lawyer Second Annual . Recent Developments in Continued from page 2 the definition of open source Information Technology Law software and the most popular open source licenses, includ- By David R. Syrowik, Brooks Kushman PC ing the GNU public license and the BSD license. William also discussed the differences Patents – Case Law – U.S. Supreme Court between open source software, As reported at 78 BNA’s PTCJ 675, on September 25, 2009, the government commercial software, free soft- filed a long-awaited brief in arguing that patent-eligible processes under 35 U.S.C. ware, and shareware, and he § 101 encompass “the broad expanse of technological and industrial fields”, but discussed the legal risks of using not “methods of organizing human activity”. Bilski v. Kappos open source software. Finally, Professor Roberta Patents – Case Law – U.S. Courts of Appeal J. Morris from Stanford Law As reported at 78 BNA’s PTCJ 405 on July 27, 2009, the U.S. Court of Ap- School spoke on the recent Bilski peals for the Federal Circuit invalidated Blackboard Inc.’s patent for conducting v. PTO Commissioner case and courses online over the Internet, as all patent claims are determined to be either the US Supreme Court’s grant of anticipated or inadequately disclosed. Blackboard Inc. v. Desire2Learn Inc. certiorari in that case. Roberta As reported at 78 BNA’s PTCJ 502 on August 19, 2009, the U.S. Court of discussed the history of disfa- Appeals for the Federal Circuit held en banc that a statutory prohibition against vored inventions and the modern supplying components of a patented invention for offshore assembly does not disfavored inventions: software apply to method claims. In an 11-1 opinion, the court overrules its 2005 holding and business methods. Roberta in Union Carbide v. Shell Oil, which appellants argued was in conflict with the also provided attendees with her . U.S. Supreme Court’s 2007 decision in Microsoft Corp. v. AT&T Corp. Cardiac . predictions and practice tips in . Pacemakers
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