FBI Calls Out Data Privacy and Security Risks with Educational Technology

Educational technology (“EdTech”) such as unified communications programs, educational software, and networked devices has become an integral part of education due to its ability to help educators, students, and institutions manage information, provide educational materials, and improve administrative functions. But the FBI is now warning of the data privacy risks associated with EdTech.

The FBI notes the wide range of personal data that EdTech collects from users:

  • personally identifiable information;
  • biometric data;
  • academic progress;
  • behavioral, disciplinary, and medical information;
  • web browsing history;
  • students’ geolocation;
  • IP addresses used by students; and
  • classroom activities.

Continue Reading

Give Me Liberty, or Give Me Death? Supreme Court May Resolve Circuit Split on Effect of Rejection of Trademark Licenses in Bankruptcy

It might sound odd to the ears of an intellectual property lawyer, but trademarks are not intellectual property—as defined in Section 101(35A) of the Bankruptcy Code, anyway. The significance of the omission of trademarks from this definition is that it is unclear what happens to the rights of a licensee of a trademark when a debtor in possession or trustee in bankruptcy, in the position of the licensor, rejects the license under Section 365(a) of the Bankruptcy Code. Is the license terminated, leaving the licensee with only an unsecured claim for damages, or is it up to the courts to fashion a remedy for the licensee? Federal circuit courts of appeal are split, as described in further detail in my article for the ABA’s Landslide magazine.

The Fourth Circuit held in 1985 in a case called Lubrizol that rejection of a license to use a technology (not a trademark) resulted in termination of that license. This was a problem for technology licensees. So in 1988, Congress enacted Section 365(n) of the Bankruptcy Code in order to give licensees of intellectual property the choice of whether to retain their rights under certain circumstances or to treat the license as terminated when the licensor rejects it. The key to whether the licensee gets that choice is whether the subject of the license is “intellectual property.” Congress included patents, copyrights, and other forms of intellectual property in the definition, but intentionally left out trademarks, leaving open to interpretation the effect of rejection of a trademark license by the licensor (or its bankruptcy trustee) after the licensor enters bankruptcy. Continue Reading

Washington Court of Appeals Affirms That “Inevitable Disclosure Doctrine” Still an Open Question, but UTSA Does Not Preempt All Common Law Claims

In an opinion published on August 22, 2018, but filed earlier on June 25, 2018, the Washington Court of Appeals reversed summary judgment in favor of the employer and remanded for trial on the merits of a trade secrets dispute. The opinion dealt with two controversial issues in trade secret law—the “inevitable disclosure” doctrine and the scope of UTSA preemption. See: Modumetal v Xtalic Corporation and John Hunter Martin.

The trade secrets at issue pertain to “electrodisposition,” namely allowing a coating of metal to be deposited onto a surface by submersing the item into a specially developed chemical bath and running an electrical current through it. Modumental and Xtalic are competitors in the field of nanoscale technology. In 2008, John Martin began working at Modumental as a student intern, and signed a non-disclosure agreement. After graduating, he continued working at Modumental and, in particular, worked on developing an aspect of Modumental’s electrodisposition process. Continue Reading

Ninth Circuit Says Having an IP Address is Not Enough for Infringement: Cobbler Nevada v. Gonzales

Anyone with an internet connection can find copyrighted content to download—legally or illegally. But the Ninth Circuit has now held that the mere fact that a rightsholder can show an individual is connected to the IP address through which illegal downloading took place is not enough to make out a case for copyright infringement. In Cobbler Nevada v. Gonzales, plaintiff Cobbler owns the rights to a soon-to-be-released movie, copies of which started illegally becoming available through BitTorrent networks. Cobbler identified an IP address located in Portland, Oregon that had downloaded and distributed the movie numerous times without authorization, and brought a John Doe action against the IP address to discover who owned the account. Records subpoenaed from the internet service provider identified defendant Gonzales as the account holder. Continue Reading

Oregon Court of Appeals Allows Enforcement of a Covenant Not to Compete by Narrowing the Meaning of “Customers”

Last week, the Oregon Court of Appeals issued its opinion in Oregon Psychiatric Partners, LLP v Henry, 293 Or App 471 (2018). The opinion is a helpful reminder that a court retains the power to use its “blue pencil” to convert an unenforceable provision in a noncompetition agreement into an enforceable one.

More specifically, the court concluded that a provision in the agreement to prevent the employee from soliciting or transacting business with “customers of the employer” should be interpreted to fall within an exception to the ban on competition. The language was narrowed so that it only applied to prevent a promise to not solicit customers “who would reasonably be expected to return to the employer for purposes of doing business.” In other words, by narrowing the definition of “customers,” the court was able to save the provision. In particular, the court avoided having to decide that the clause in the contract, which literally would have applied to any “customers of the employer” was too broad to enforce. Continue Reading