A federal district court decision in Massachusetts (summarized ably here) is a grim reminder to all of us that even the most trivial article in the English language can make or break your client’s contract or case.
An employer sought to enforce a 2005 confidentiality and non-compete agreement against an employee who had contemporaneously signed a separate employment agreement. The employer required the employee to sign a new employment agreement in 2012.
The new employment agreement lacked any integration clause (ie, it lacked the usual “these are the only terms that apply between the parties” provision). Nevertheless, in ruling that the 2012 agreement superseded both the 2005 employment agreement and the 2005 confidentiality agreement, the court focused on the first paragraph of the 2012 document that introduces the rest of the agreement: “The following are the terms of employment: ….”.
Literally italicizing the term “the” in its analysis, the court held that the use of the definite article in the 2012 agreement conveyed an element of exclusivity, and consequently superseded both prior agreements.
Makes you wonder how any of us can ever sleep at night.
Because relevant copyright law permits reverse engineering (RE) as fair use in some situations, blanket contractual prohibitions on software RE might not be enforced, esp. if done to secure software interoperability. Most tech lawyers recognize this, and so the following formulation is common: “Licensee will not reverse-engineer … , except to the extent enforcement of the foregoing is prohibited by applicable law.” The problem, however, is that such a clause operates in a purely binary fashion: if RE is fair use, the clause will not be enforced; otherwise, it will. It’s not much of an improvement over a simple prohibition. A better variant would anticipate fair use.
Licensee will not reverse engineer, decompile, or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the executable code portions of the Licensed Software (collectively, “Reverse Engineering”)., except to the extentIf enforcement of the foregoing is prohibited by applicable law., Licensee may engage in Reverse Engineering solely to obtain information necessary to achieve interoperability with the Licensed Software, or as otherwise permitted by applicable low, but only if: (a) Reverse Engineering is strictly necessary to obtain such information: and (bi Licensee first requested such information from Licensor, and Licensor failed to make such information available under reasonable terms.
UPDATE (Oct. 2021): The European Court of Justice, in Top System SA v. Belgian State (Oct. 2021), has ruled that the lawful purchaser of a computer program is entitled to decompile (ie reverse engineer) a software program where such decompilation is necessary to enable that person to correct errors affecting the operation of the program. Notably, however, the ECJ held that “decompilation of a program cannot be regarded as ‘necessary’ where the source code is lawfully or contractually accessible to the purchaser,” and that “the [copyright] holder and the purchaser remain free to organise contractually the manner in which that option is to be exercised.”
As such, the clause has been updated to reflect this decision, among other improvements.
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The intended audience for this post is licensed and practicing lawyers, not laypersons seeking legal advice for their situation. If you are not a lawyer, hire one before using or relying on any information contained here. This post is: (1) informational only and not intended as advertising or as solicitation for legal services, (2) not intended to render legal advice to you, and (3) not a substitute for obtaining legal advice from a qualified attorney to assess your exact situation. The information here is subject to change and may not be applicable or correct in your jurisdiction. The views and opinions expressed here are Sean’s alone and do not necessarily represent the positions of Sean’s present or former employers, law firms, or clients.
Like many other jurisdictions in the US and abroad, all employers in California, regardless of size or industry, are required to have an illness and injury prevention program (IIPP). This requirement is often overlooked but frequently enforced.
In the words of one practitioner, “Cal/OSHA issues more citations under the IIPP standard than any other standard—thousands each year—many of them for a complete failure to have an IIPP. During a Cal/OSHA inspection, one of the first documents asked for is the IIPP, and failure to have one can carry a penalty up to $25,000.”
Many other states mandate such programs as well. They require employers to proactively detect and remediate workplace hazards, reduce their frequency, and mitigate their harm.
COVID-19 is one such hazard—one that has brought nearly the entire world to its knees. Many areas are now subject to shelter-in-place orders or will be shortly. Companies everywhere are advising their employees to work from home, with only essential staff allowed to go to the office.
The lawyers of Redline are working on a sample for use by businesses in areas subject to shelter-in-place, or that have ordered staff to work from home. This template is based on the recommendations of the six-county San Francisco Bay Area shelter-in-place orders and the latest CDC and WHO guidance. Go here to join and take advantage of this collaborative effort.
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The intended audience for this post is licensed and practicing lawyers, not laypersons seeking legal advice for their situation. If you are not a lawyer, hire one before using or relying on any information contained here. This post is: (1) informational only and not intended as advertising or as solicitation for legal services, (2) not intended to render legal advice to you, and (3) not a substitute for obtaining legal advice from a qualified attorney to assess your exact situation. The information here is subject to change and may not be applicable or correct in your jurisdiction. The views and opinions expressed here are Sean’s alone and do not necessarily represent the positions of Sean’s present or former employers, law firms, or clients.
Consider the following all-too-common scenario: employee leaks valuable company information to a competitor and is fired. Company then sues the employee for breach of an employment NDA, which applies to “all proprietary information” that the employee received. The confidentiality obligation is evergreen.
Outcome? In a state where employer-mandated non-compete covenants are enforceable if reasonable, a US court struck down this exact NDA as an unreasonable restraint of trade.
The court interpreted the definition of “Confidential Information” to capture the employee’s general knowledge and experience. The omission of any time-bound on the confidentiality obligation was particularly fatal. In fact, the court cited case precedent to the effect that even a five-year confidentiality term would be too long.
The court refused to blue-pencil or reform the NDA. At an instant, the employer’s confidentiality agreements with all its employees were rendered worthless.
The clear lesson of this and other cases is to ensure that the employee confidentiality obligation survives traditional restraint-of-trade scrutiny. But a time-bound obligation is not optimal for the employer ….
Possible strategies to mitigate NDA enforceability risks are the subject of a Redline collaboration here, including relevant clause work product.
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The intended audience for this post is licensed and practicing lawyers, not laypersons seeking legal advice for their situation. If you are not a lawyer, hire one before using or relying on any information contained here. This post is: (1) informational only and not intended as advertising or as solicitation for legal services, (2) not intended to render legal advice to you, and (3) not a substitute for obtaining legal advice from a qualified attorney to assess your exact situation. The information here is subject to change and may not be applicable or correct in your jurisdiction. The views and opinions expressed here are Sean’s alone and do not necessarily represent the positions of Sean’s present or former employers, law firms, or clients.
Knocking down a false, weak or misleading characterization of your opponent’s argument is to engage in strawmanning. This kind of argumentation fallacy requires that the audience be ignorant or uninformed of the original argument to be successful.
You know when someone makes an argument, and you know you can get away with making it seem like they made a much worse one, so you attack that argument for points? That’s strawmanning. Lots of us have done it, even though we shouldn’t. But what if we went one step beyond just not doing that? What if we went one better? Then we would be steelmanning, the art of addressing the best form of the other person’s argument, even if it’s not the one they presented. …. If you know of a better counter to your own argument than the one they’re giving, say so. If you know of evidence that supports their side, bring it up. If their argument rests on an untrue piece of evidence, talk about the hypothetical case in which they were right. Take their arguments seriously, and make them as good as possible. Because if you can’t respond to that better version, you’ve got some thinking to do ….
