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Debtor May Assume License as Executory Contract Despite Anti-Assignment Language
In a recent decision of interest to the leasing community, the U.S. District Court of Maryland has held that a Chapter 11 debtor could assume a software license agreement (SLA), as an executory contract, although the agreement contained a clause that the debtor could not “assume or assign” the agreement, and even though the assignability of the SLA was clearly precluded by federal copyright law.
In the case of RCC Technology Corp. v. Sunterra Corp. (287 B.R. 864 (2003)), the creditor, Resort Computer Corporation (RCC), appealed an order of the U.S. Bankruptcy Court denying RCC's motion to “deem rejected” a SLA between it and the bankruptcy debtor, Sunterra Corporation. The District Court affirmed this order, but grounded its decision upon other reasons than those articulated by the U.S. Bankruptcy Court.
The court relied upon a long line of authorities in reaching its decision. (See, e.g. Everex Sys., Inc. v. Cadtrak Corp. (In re CFLC, Inc.), 89 Fed. 673 (9th Cir. 1996); In re Access Beyond Techs., Inc., 237 B.R. 32, 43-44 (Bankr.D.Del. 1999)). The court held that intellectual property licensing agreements such as the SLA are executory contracts. The court found these authorities to be persuasive on the issue.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?