Often clients and attorneys question the value of an extensive NDA, given that its enforceability may be questionable and its cost of enforcement high, as such a case often devolves down to a situation of "he said, she said". However when the stars and the facts align, a properly executed and well defined NDA may prove to be a valuable tool against unauthorized disclosures of confidential information. Case in point, earlier in the month, a jury awarded ZeniMax a $500 million award for copyright infringement, false designation, and breach of a non-disclosure agreement executed between ZeniMax and Oculus co-founder Palmer Luckey. This was less than the $4 billion award ZeniMax originally asked for, but is a substantial judgment against Oculus, especially given that $200 milliion of that award were for the NDA breach alone, where trade secret theft was not found.
The U.S. Department of Justice and the Federal Trade Commission (FTC) jointly issued an updated Antitrust Guidelines for the Licensing of Intellectual Property. This update modernizes the guidelines originally issued in 1995, and describes how the agencies will evaluate the competitive effects in licensing agreements which involve patents, copyrights, trade secrets, and general know-how.
Following our November notice, we are again reminding all online "service providers" to re-register with the U.S. Copyright Office's new DMCA agent directory. Any service provider that has designated an agent with the Office already prior to December 1, 2016, must re-submit a new designation electronically using the new online registration system by December 31, 2017, in order to avoid loss of DMCA safe harbor protection (17 USC 512). The new flat fee is now only $6 per registration (compared to the $105 previously). However, registrations will now expire after three years, and online service providers need to renew their registrations before the time of expiration in order to maintain the safe harbor protection. To familiarize users with the new system, the Copyright Office has released a number of tutorial videos: https://www.copyright.gov/rulemaking/onlinesp/NPR/index.html.
A new Copyright Office rule will go in effect this December 1, 2016, and will require all service providers to now electronically register with the Copyright Office, in order to qualify for DMCA Safe Harbor. This new filing system replaces the old, and will also require even those who have already filed with the Copyright Office to re-register. Further, re-registration will be required every three years thereafter. The cost of each filing now, however, will only be $6, compared the the $105 fee previously set. The DMCA Safe Harbor provision, codified in 17 USC 512, provides limitations to liability for certain conduct of a service provider's users which may violate the copyright ownership of another, so long as the service provider is in compliance. To avoid inadvertent loss of this protection, please contact your copyright counsel or file a new registration by December 31, 2017.