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Mobile App Development: Key Legal Considerations
Practical Law Legal Update 7-525-8637 (Approx. 5 pages)
Mobile App Development: Key Legal Considerations
by Practical Law Intellectual Property & Technology
| Law stated as of 29 Jul 2014 • USA (National/Federal) |
A discussion of key legal issues companies should consider and address when developing and distributing mobile applications (apps) for download by end users.
With widespread adoption of internet-connected mobile devices, including smartphones and tablet computers, mobile applications (apps) are increasingly a preferred medium for accessing content and interacting online. The unique capabilities of mobile technology provide customer-facing businesses with new ways of reaching existing and new customers. Apps also provide new ways for accessing, processing and transmitting data that facilitate internal operations.
These capabilities also raise legal considerations, including those relating to:
- End-user privacy.
- Intellectual property (IP) rights.
- Advertising and promotions.
To protect their rights and minimize risks of liability from violating others' rights, companies should consider and address legal issues from the beginning and throughout mobile app development.
For a discussion of mobile app development and distribution, including key business and legal considerations, see Practice Note, Mobile App Development and Distribution.
End-user Privacy
Privacy is a key legal consideration when developing a mobile app. The Federal Trade Commission (FTC) has identified mobile privacy as a key enforcement priority, specifically children's privacy. State regulators, in particular California's Attorney General, and class action attorneys have also been active in this area. To ensure compliance and minimize the risk of liability and reputational harm resulting from privacy breaches, companies should:
- Consider privacy from the beginning of the mobile app development process.
- Have a mobile app privacy policy that accurately and completely discloses its information practices, including its collection, use, disclosure, maintenance and protection of personal information.
In developing its privacy practices and disclosures, companies should take into account:
- Specific legal requirements that may apply based on the type of information being collected, including any specific requirements for regulated industries or sensitive information.
- Industry guidance and best practices.
For more on mobile app privacy, including guidance on compliance and minimizing risks, see Practice Note, Mobile App Privacy: The Hidden Risks and Mobile App Privacy Compliance Checklist.
For a model mobile app privacy policy, see Standard Document, Mobile Application Privacy Policy.
Intellectual Property Rights
When developing and distributing a mobile app, a company must consider and address both protecting its own IP rights and minimizing its risk of infringing the IP rights of others.
Developing a mobile app generally gives rise to new IP rights. In particular:
- The app, including its original software code and content, may qualify for copyright protection. For an overview of US copyright law, see Practice Note, Copyright: Overview.
- Certain aspects of the app, including its source code, may be protectable as trade secrets.
- A process or method embodied in an app may be patentable. For an overview of US patent law, see Practice Note, Patent: Overview.
- The app's name may qualify for trademark protection. For an overview of US patent law, see Practice Note, Trademark: Overview.
At the beginning of and throughout the development process, the company should take appropriate measures to define, secure and protect its IP rights, including:
- Entering into work-made-for-hire and IP rights assignment agreements with its employees and outside contractors involved in developing the app.
- Conducting trademark clearance. For guidance on clearing trademarks for use and registration, see:
Developing a mobile app often involves use of IP owned by others. Therefore, the company should:
- Conduct appropriate rights clearance to evaluate whether it needs a license for its proposed uses.
- Ensure it secures all necessary rights.
Where the company has already licensed content for other uses, it should not assume its existing agreements cover use in or delivery through the app. For example, an existing agreement may be limited by:
- Territory.
- Distribution platform or media.
- Device type.
Advertising
Mobile apps generally raise the same advertising law considerations as websites, e-mail and other online and networked communications. For example, communications sent through or in connection with mobile apps must comply with:
- The Telephone Consumer Protection Act (TCPA) and related Federal Communications Commission rules. The TCPA notably provides for private causes of action and high statutory penalties for violations.
- The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) and related FTC rules, which regulate certain commercial e-mail and text message communications to consumers. For guidance on complying with CAN-SPAM, see Practice Note, E-mail Marketing: CAN-SPAM Act Compliance.
- State laws that regulate commercial text messages.
The company also must consider relevant advertising and promotion laws in connection with:
- Serving third-party advertising through or in connection with the app.
- Advertising or promoting the app. The FTC's position is that mobile app descriptions and public statements a company makes about its app are advertising.
- Conducting or promoting contests or sweepstakes in or through the app. For more information on laws regulating contests and sweepstakes and guidance for complying with them, see:
In addition, the company should evaluate whether the app itself may be considered advertising. If so, the app's content must comply with all relevant advertising and promotion laws.
For more information on online advertising laws and regulation, see Practice Note, Online Advertising and Marketing.