By Alan S. Wernick, Esq.
“Mobile apps” are becoming as ubiquitous as
mobile phones. Today, mobile apps provide increasingly numerous
functions for mobile phones to interact with you as well as with other
devices. All of those interactions have significant business, technology
and legal implications.
instance, mobile app issues can include copyright, trademark, patent,
trade secret, contract, tort, privacy, TCPA, Children's Online Privacy
Protection Act, CAN-SPAM, Federal Communications Commission, Federal
Trade Commission, licensing, open source and class-action legal issues,
to name a few. These issues concern not only manufactures of mobile
phone devices but app developers as well.
mobile phone and mobile app industry is ripe with patent infringement
risks. Headline news has been made by the patent infringement cases
involving Apple and Samsung. Even the Angry Bird app has been the target
of patent infringement. The lesson for mobile app developers (and
manufacturers) is to be aware of the patent pool in which your
technology is designed to play. Protect your intellectual property
rights proactively. Promptly respond if you become aware of possible
risk of infringing activity whether it’s a third party infringing your
patent rights (or other intellectual property rights) or you become
aware of the possibility that your mobile app may be infringing.
In Haught v. Motorola Mobility, Inc.
(8/23/2012), the U.S. District Court for the Northern District of
Illinois denied a motion to dismiss a class-action lawsuit in a case
example of tort law interacting with mobile apps. The case involves the
manufacturer of a mobile phone announcing a future upgrade of the
operating system of its mobile device. A consumer purchased the mobile
device allegedly in reliance on that representation only to find (after
the return policy expired) that the manufacturer was not going to
provide the upgrade. Although the outcome of this lawsuit has not yet
been determined, the case provides one example of how promissory fraud
(tort) issues may arise with mobile devices.
May 25, 2012, the FCC announced an inquiry into privacy and security of
information stored on mobile communication devices. The public notice
solicited comments regarding the privacy and data-security practices of
mobile wireless service providers with respect to customer information
stored on their users' mobile devices and the application of existing
privacy and security requirements to that information. The FCC’s
- How have those practices evolved since the FCC collected information on this issue in the 2007?
- Are consumers given
meaningful notice and choice with respect to service providers'
collection of usage-related information on their devices
- Do current practices serve the needs of service providers and consumers and in what ways
- Do current practices raise concerns with respect to privacy and data security?
The FTC and other regulators are
also looking into privacy issues concerning mobile apps. As wireless
service providers and mobile app developers become stewards of sensitive
customer and business data, including personal identifying information,
how will the law and regulations evolve? Will wireless service
providers and mobile app developers be viewed differently or the same as
Internet service providers? What
these developments mean for mobile app developers and the businesses
hiring mobile app developers is that they, and their legal advisers,
must be mindful of the evolving legal issues. When the subpoena is
served with the complaint alleging violations of these and other legal
rights, this is not the time to ask, "Is there an app for that?" to wish
away the pending legal liabilities.
By Alan S. Wernick, Esq., Partner, FisherBroyles, LLP. © COPYRIGHT 2012 ALAN S. WERNICK.