Four Steps to Protect Your App and Yourself

Mobile apps are how people use smartphones, tablets, and other mobile devices. The business opportunity for developing a mobile app is enormous, but mobile app development presents its own legal risks. There are several legal considerations that a mobile app developer needs to consider. If done carefully, mobile app development is an opportunity to create a great new application and intellectual property in a new business and brand that will add value to the developer.

Here are four steps to take to help ensure your rights are protected:

Step 1: Own the code

If you code your mobile app from scratch by yourself, then all the software came from you. For many mobile apps, it takes a team of developers and software from different sources to create it. Elements of software come from open source, from other projects, or other programmers. If you obtained code from open source, be sure to get the license and read it. Does it allow you to use the code for any purpose? Do you need to get permission from the source?

If you are working with multiple programmers, make sure to consolidate the title, which means that one entity owns all the rights to the software. If you hire programmers to make your app for you, then make sure that the contract spells out that you own all the intellectual property rights to the software. If you are working with other programmers and plan to own the app together, spell out exactly who owns what and how the revenue from the app will be split.

Written contracts are essential. Establish who owns the code and, if it is owned jointly, what rights everyone has. Another way to consolidate title is to have all the programmers give their code to a company in return for an ownership stake in the company, payment, or future promise.

Step 2: Protect all the value

An app is composed of lines of code read by a computer or mobile device. That code may only provide some of the value of your app. Your app may contain different kinds of intellectual property rights, and you need to protect as much of that intellectual property as possible.

The characters on your puzzle game may be so popular that a television producer wants to license them for a cartoon. The metadata generated by your social network may be a gold mine to advertisers. The way you display an exerciser’s workout metrics may become the gold standard for how exercisers want their data displayed. The only way to capitalize on any of these opportunities is through intellectual property protection.

Here are the best ways to protect all the value in your app:

• Copyright an app. You can claim copyright protection for the actual code of an app, but there is a lot more copyright law protection. An app that serves as a virtual tour guide through museums, for example, may have a script that describes all of the artwork. That script may be copyrightable. For an app that provides dozens of pictures of houses representing various architectural styles, each picture may be copyrightable. In addition to the app itself, the individual parts of your app may be collectively or individually copyrightable, so be sure to consider the full value of your app.
• Patent an app. Patents have long protected software inventions, and apps are no different. Software patents often protect the way software operates and the design of user interfaces. Spend some time searching to see if your app looks or works like any other. If you have something new, patent protection can dramatically improve your app’s intellectual property protection. Even a pending patent deters competitors from copying your app, giving you a broader market.
• Trademark an app. Trademarks protect the use of words or symbols associated with a particular product or service. Apps lend themselves to trademark protection, but not just for the name of the app. You may want to trademark the name of the services that your app provides. For example, if your app, “Burnpath,” is the preferred app for runners to share their routes online (which you call “Sweatpaths”), you can not only trademark your app name (Burnpath for exercise software) but also trademark the name of the online route (Sweatpath for exercise mapping). You could thereby exclude your competitors from calling their similar shared routes the same thing.

Step 3: Minimize your risks

Lawyers think about how things can go wrong. When you design your app, think like a lawyer. How can your app harm your customers and expose you, the developer, to liability?

Is your app a game that lets players make in-app purchases? If so, you need to take steps to safeguard how your customers pay for those purchases. One solution may be to use an external application and license that solution. That way, you can focus on making your game and let someone else worry about secure credit card transactions.

Is your app a social platform where people enter information about their lives? If so, you need to make and maintain a privacy policy or otherwise communicate to your customers what you will do with the information. The more specific your policy is to the nature of your app, the more protection it will offer you. If an enraged user sues you for data mining their personal information, then a blanket privacy wavier may not help you as much as a specifically tailored policy that:

• Explains what your app does with the information your users share with it
• Explains the steps your app takes to ensure the data is secure
• Explains how the user will be informed in case of a breach
• Explains what the user can do if they have questions or want to stop using the app

The policy must inform users about what happens with the data they submit. Make sure that you have a clear policy and convey it in clear language that your users will understand. Even if you are not the next big social network, most apps have some privacy policy since it is important to let your users know what to expect.

Apps are products, and you are liable for any harm caused by the intended use of your product. Privacy and security are common concerns for app developers—but apps can literally do anything. If you are making an app that uses an algorithm to diagnose a disease, your liability is much different from an app that shares and streams user-made videos. Both require different strategies to minimize the developer’s risk.

One strategy to minimize the risk of any app is to incorporate. Create a corporation and use the corporation to submit to the distributor. You may then be personally protected from responsibility for any harm your app may cause, and your corporation will be in a better position to ensure itself or otherwise manage that risk.

Step 4: Read carefully, read often

When you create an account with an app store, you will agree to a very long contract. Read it very closely and be sure to understand it. When can the app store take your app down? How often can you update your app? How is liability shared between you and the app store?

Also, check to see what happens if the terms and conditions change over time. Most contracts reserve the right to update those terms, so check often and see what changes the app store makes.