How app makers can avoid legal pitfalls

Mobile developers will have to brush up on their legal skills to avoid a “coming storm” of apps litigation, according to a Vancouver-based technology and business lawyer.

Timothy Murphy, who practices law at Murphy & Company, said the app explosion over the last three years has created a market where developers are rewarded for getting their apps out to the market as quickly as possible. Although most litigation to this point has occurred between app store retailers or handset vendors, the lawyer expects that as app makers get deeper pockets, they will become a more attractive target for plaintiffs.

“We don’t want developers to be scared to get out there and launch a new app, but they should be careful,” Murphy said.

For Murphy, app developers should be consider whether their software is infringing its users’ privacy rights, using copyright-protected material, or emulating the look and feel of another popular app.

Apps that transmit data to third-party advertisers without user consent, or as Murphy referred to them as “leaky apps,” has led to some class-action, privacy-related lawsuits in the U.S.

“In Canada, we have a fairly strong privacy regime as well and I would be surprised if it wasn’t possible for people to launch class-action lawsuits here,” he said, adding that writing comprehensive terms of agreement into the app is crucial for legal protection.

In addition, Murphy said that vetting the app developers you bring on board to help you with the project is also a good idea. Developers that have worked for large software companies might be subject to non-compete clauses, he said.

“For example, if you’re at RIM and working on an instant messaging service and then you quit and start working on another instant messaging product,” Murphy added.

A policy that ensures that a team of developers vet each other’s work will also protect against apps that might unintentionally copy the look and feel of another existing app.

Scott Michaels, vice-president of client services at app development firm Atimi Software Inc., said his company will tell clients to reevaluate the apps they want to build if they even mention another app in the initial pitch stage.

“If you’re even referencing other apps, that’s probably a bad idea,” he said, adding that while the content will always be your own, most lawsuits will be around the intellectual property of the app’s layout and controls.

Another area for developers to watch out for when dealing with clients is their initial development contract, Michaels said.

“If you’re a new developer, you contract should not agree that there’s no patent or IP infringement,” he added. “The contract should state that anything a client brings to you is a client deliverable and it will keep you a lot safer.”

Asking your clients to conduct a patent search is also a best practice that can help protect you from liability, Michaels said. So is drafting up a new “terms of use” policy, as opposed to porting over a “terms of use” your client’s Web site and changing a few words, he added.

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