Software License Agreements I – Scope of the License

We’ll be looking at the typical items addressed in a business to business software license agreement (as compared to an end user license agreement).  The purpose of a software license between two companies are generally for the licensor, who has valuable software, to set forth how that software may be used by a licensee and the compensation and other items applicable to the licensee’s use.  Read more

New York’s BitLicense – License to Engage in Virtual Currency Business Activity

New York’s Department of Financial Services passed regulations which apply to virtual currencies, and require licensing of certain entities engaging in certain activities in connection with the state.  It is referred to by the State as the “BitLicense”.

The State says that any individual or entity which is involved in the following is required to obtain a BitLicense:

  • Virtual currency transmission
  • Storing, holding, or maintaining custody or control of virtual currency on behalf of others
  • Buying and selling virtual currency as a customer business
  • Performing exchange services as a customer business
  • Controlling, administering, or issuing a virtual currency.

Read more

Ricardian Contracts

Ricardian Contracts are really a stepping stone to Smart Contracts.  They are a way to link a contract to another system, typically an accounting system.  Ian Grigg came up with the Ricardian Contracts some time ago.  He first published about it in Financial Cryptography in 7 Layers in 1998.  Ricardian Contracts were initially used for Ricardo (hence their name), a bond platform.

They are a melding of a traditional contract with a contract that can be read and executed by machines. A Ricardian Contract can be defined as a single document that:

  1. is a contract offered by an issuer of some item of value (think of a bond, coin, token, currency, etc.) to a holder of such item;
  2. for a valuable right held by the holder, to be managed by the issuer;
  3. can be read in plain language by humans (so like a normal contract);
  4. can be read by programs (and is parsable like a database);
  5. digitally signed;
  6. carries the keys and server information; and
  7. is allied with a unique and secure identifier.

Read more

Digital Signatures – Basics of Hashes and Encryption

When dealing with online contracting, blockchain, clickwrap agreements, smart contracts, or just generally these days (and certainly in the future), you will come across the terms “hash” and “encryption.” Especially when discussing digital signatures. We’ll try to distill these a bit for you.  These are all regularly used in the transmittal of electronic information and verification of the information, the sender and/or receiver. Read more

New York’s Blue Sky Securities Laws – A Primer for Startups and Other Issuers by Michael Stanczyk

3d blue sky bookAs a younger lawyer I was regularly working on securities offerings.  For the bulk of the offerings they were private placements to accredited investors under SEC Rule 506(b), which involved filing a Form D and state notice filings.  In most states it was pretty straightforward. New York, however, was not straightforward then, and still remains a mystery to many people.  Over the years I searched for a book that covered the basics of New York’s Martin Act (the law covering securities offerings in the State), but never found exactly what I was looking for.  I kept working on deals and writing posts for this blog (in addition to memos and white papers, etc.), and over time I compiled a decent amount of information and knowledge of the subject and decided to put it all into one place.  Next thing you know I had the beginnings of a book.  Link to see it on Amazon here.

Now I don’t profess to being a specialist in the field of securities, as there are many complexities and rabbit holes to go down if you get outside the more “vanilla” type offerings. Startups, emerging companies and even investment funds, however, generally are raising money through private placements under SEC Rule 506(b). This book gives the basics and is, like its titled, a primer.  I tried to walk a fine line to allow it to be read by non-lawyers, with enough citations to assist legal practitioners.

Admittedly, this book is a niche product.  The prospective audience is those whose companies are looking to raise money, or individuals otherwise involved in some aspect of companies raising money.  I hope it can be helpful to such individuals, including younger attorneys just getting started in the field.

In any event, the book is for sale in paperback and e-book on Amazon.   I personally feel the paperback is easier to read and to flip back and forth to things, and to view the exhibits and addenda, which should be consulted. I have a number of copies of the book, and if any readers of this blog or friends and colleagues of mine would like a free copy, feel free to reach out.  Thanks for the support.

Considerations When Buying a Website or Blog

If you have some disposable funds and are looking to get into the online world, buying a content based website and/or blog that throws off a revenue stream may be something that could interest you.  There are a number of sites that act as clearinghouses for domain names, websites and blogs, but probably the most well known one is Flippa.  No matter where you are looking, when purchasing a website or blog then the following are important considerations. Read more

A Look at Smart Contracts

Nick Szabo is credited as being the visionary, if not the godfather, of smart contracts.  He sees smart contracts as agreements that “involve objectively verifiable performances, or performances that can be automated such as cash flows.”  His blog “unenumerated” is fantastic (deep posts on a variety of topics – each one is an ocean of thought in and of itself) and his appearance on Tim Ferriss’ podcast is probably the best crash course on all things blockchain and crypto-currency related.

Nick’s proposed definition of a “smart contract” is (1) a set of promises (2) specified in digital format (3) which includes various protocols (4) within which the parties perform. Read more

Federal Securities Laws applied to ICO’s – Initial Coin Offerings

New “coins” or tokens and their platforms are all the rage.  Bitcoin, Bitcoin Cash, Ethereum, Litecoin, Zcash, Dash, Ripple, Monero, the list goes on and on and new ones keep popping up.  The new coins are either entirely their own platform or they are derivations, i.e. spin-offs of one of the existing virtual currency platforms. Read more

Browsewrap License Cases: Other

  • Hubbert v. Dell Corp., 2005 WL 1968774 (Ill. App. Ct. 2005) (court upheld arbitration clause in Dell’s for cause regarding alleged false claims made by Dell to online purchasers of the computers. Court found different colored hyperlinks on each page like a multipage contract).
  • Hines v. Overstock.com, Inc., 668 F. Supp.2d 366 (E.D.N.Y. 2009) (both arbitration and forum selection clause invalid due to no actual or constructive notice)
  • Van Tassell v. United Mktg. Group, LLC, 795 F. Supp. 2d 770 (N.D. Ill. 2011) (holding arbitration provision was unenforceable where it was included website’s conditions of use but difficult to find, because users had to scroll all the way down home page, click on Customer Service link, then scroll down and click another link to find it).
  • Friedman v. Guthy-Renker, LLC, 2015 US Dist LEXIS 24307 (C.D. Cal. Feb. 27, 2015) (where two plaintiffs clicked on checkbox that only referenced credit card terms prior to purchase, arbitration not binding; for plaintiff who clicked on checkbox which had a link to the terms the arbitration provision was binding)
  • Cvent, Inc. v. Eventbrite, Inc., 739 F. Supp. 2d 927 (E.D. Va. 2010) (terms of use not valid as they were buried at bottom of first page and on no other page).

Browsewrap License Cases: In re Facebook Biometric Information Privacy Litigation, 185 F. Supp. 3d 1155, 2016 U.S. Dist. LEXIS 60046, (N.D. Cal. 2016)

In In re Facebook Biometric Information Privacy Litigation, 185 F. Supp. 3d 1155, 2016 U.S. Dist. LEXIS 60046, (N.D. Cal. 2016):

  • A class action against Facebook was filed pursuant to the Illinois Biometric Informration Privacy Act (BIPA). Parties agreed to transfer case to N.D. California, but wanted Illinois law (and not CA law) to apply.
    • Plaintiff’s alleged that facial and other recognition used by Facebook violated BIPA
  • Facebook argued that its choice of law clause in its current Terms of Use required the use of CA law.
  • There were three plaintiffs at issue and court reviewed the sign up procedure for each (2005, 2008 and 2009).
    • When Facebook updated its Terms it emailed a notice to all user’s email addresses and the next time each user logged on, they saw “jewel” notification in their personal newsfeed alerting to the change in such documents but no affirmative action was required by each user).BUT said the general and individualized notice was enough, that the agreement was effective, but that in the situation it would not apply CA law.
  • The Court said that the notice provided by Facebook was enough to have a binding choice of law provision (seemed to like the “personalized” nature of the news feed notice).
  • But the Court then still chose to apply IL law as opposed to CA.