All sorts of problems can arise when a company hires an independent contractor to develop software code for it. Under the Copyright Act, only two categories of work will be considered “works made for hire” (and thus works owned by the company): Continue Reading Think Your Company Owns its Software? Think Again.
Law360 recently published an article about the Fifth Circuit case of BWP Media USA, Inc. v. T&S Software Associates, Inc. The issue in BWP Media was whether “volitional conduct” is required for direct copyright infringement. Defendant T&S Software Associates hosted an internet forum in which users posted images that infringed copyrights owned by Plaintiffs BWP Media USA and National Photo Group. The plaintiff sued T&S for direct and secondary copyright infringement, but the trial court granted summary judgment for T&S. Continue Reading Brackett & Ellis Copyright Case Featured in Law360 Article
The Texas Uniform Trade Secret Act’s definition of misappropriation is complicated, and it is frequently misinterpreted by both the courts and litigants. In this post, I explore the first of the six alternative paths to liability: Continue Reading The Six Paths to Liability Under the Texas Uniform Trade Secret Act – Part 1
Although Texas courts have loosened the restrictions on the enforceability of certain employee agreements over the past two decades, Texas law still requires employee agreements to be supported by adequate consideration—i.e., mutual, non-illusory promises between employee and employer. The recent case of Eurecat US, Inc. v. Marklund, No. 14-15-00418-CV, 2017 WL 2367545 (Tex. App.—Houston [14th Dist.] May 31, 2017, no pet. h.) illustrates what is not adequate consideration. Continue Reading Are Your Employee Non-Disclosure Agreements Supported by Adequate Consideration?
Last February, I had the privilege of speaking at the State Bar of Texas’s Intellectual Property Law Workshop. This year’s theme was IP Issues with Technology Startups, and my speech was Protecting your Startup Client’s Intellectual Property and Customer Relationships: The Intersection of Trade Secrets, Confidentiality Agreements, and Covenants Not to Compete. As a springboard for my speech, I discussed the pilot episode of Silicon Valley, which, as others have pointed out, has all sort of intellectual property issues to explore. Continue Reading Tips for Protecting Your Startup’s Intellectual Property and Customer Relationships: Lessons from HBO’s Silicon Valley
On Friday, May 19, 2017, Texas Governor Greg Abbott signed House Bill 1995, which make several amendments to the Texas Uniform Trade Secret Act (TUTSA). House Bill 1995 amends TUTSA to make some of its provisions coextensive with DTSA in order to eliminate confusion and to avoid possible forum shopping between state and federal courts. The amendment also codifies the holding in In re M-I, L.L.C. TUTSA, as amended, is now the most modern and comprehensive law on trade secrets in the nation. Continue Reading Texas Enacts Amendments to the Texas Uniform Trade Secret Act
My colleague Joe Cleveland and I have written two new articles on Texas trade secrets law. The articles were recently published in the State Bar of Texas Intellectual Property Law Section’s Tipsheet newsletter. You can read the articles below: Continue Reading Two New Brackett & Ellis Trade Secrets Articles Appear In IP Law Section’s Tipsheet Newsletter
On May 5, 2017, the Austin Court of Appeals issued a first of its kind opinion holding that Texas Citizens Participation Act (TCPA)—also known as the Texas anti-SLAPP statute—can potentially be invoked to successfully defend against Texas Uniform Trade Secrets Act (TUTSA) claims. In Elite Auto Body LLC, d/b/a Precision Auto Body v. Autocraft Bodywerks, Inc., No. 03-15-00064-CV, 2017 WL 1833495 (Tex. App.—Austin May 5, 2017, no pet. h.), plaintiff Autocraft Bodywerks sued Precision (Elite) Auto Body and several former Autocraft employees alleging that the employees provided Precision with Autocraft’s trade secrets. In particular, Autocraft alleged: Continue Reading New Case States that Texas’s Right of Association Trumps the Texas Uniform Trade Secrets Act
As you know from my previous blog posts, the Texas House and Senate have been considering certain amendments to the Texas Uniform Trade Secret Act (TUTSA). These amendments were the product of months of study by a working group consisting of members of the Trade Secrets Committee of the Intellectual Property Section of the State Bar of Texas and the Business Law Section of the State Bar of Texas. Continue Reading Texas House and Senate Pass Legislation to Amend the Texas Uniform Trade Secret Act
In my March 26, 2017 post, I argued that under the Texas Uniform Trade Secret Act (TUTSA), an applicant for injunctive relief was not required to establish the common law element of a “probable, imminent, and irreparable injury.” Instead, the applicant only had to prove “actual or threatened misappropriation.” The applicant in Baxter & Associates, L.L.C. v. D & D Elevators, No. 05-16-00330-CV, 2017 WL 604043 (Tex. App.—Dallas Feb. 15, 2017, no pet. h.), made the same argument, but before the Fifth Court of Appeals could decide the issue, it found that the applicant had failed to prove its customer list was a trade secret under TUTSA. Continue Reading When a Customer List is Not a Trade Secret