Home | Computers | Networks
Technology law affects everything from Web site development to computer systems acquisition. Read on to discover some common pitfalls and tips for avoiding them. An article addressing technology law developments would need to include close to 200 issues, traps, and tips to approach a complete review. However, since few magazines would publish and fewer people would read such an article, I will settle for 23, beginning with year 2000 and Internet-related issues and moving on to CD-ROMs, association management systems, and more. 1. ISSUE: YEAR 2000 Some organizations assume that Y2K is either not a problem or, at least, not this year's problem. What's worse, some associations that recognize Y2K problems focus exclusively on internal systems and ignore external relationships. Trap: Associations may face significant economic damage and legal problems by not addressing Y2K in time. Software involving dates, such as billing or renewal software, that is not programmed for the year 2000 may need substantial work. Hardware and embedded chips also need attention. Tip: Give Y2K issues top priority. Some organizations that did not do so are already involved in court cases. There are currently more than two dozen year 2000 cases on the dockets, with more expected monthly. Get a technology expert's written opinion and get legal advice to help determine if the association's software, hardware, and embedded chips are compliant. Do the same for critical external relationships. Some key Y2K legal issues include: * Copyrights - Modifying a software program to make it year 2000 compliant may constitute copyright infringement. * Contracts - A vendor's obligation to make its software year 2000 compliant may be determined by the terms of an existing contract; for example, the contract from when the software was first installed. * Insurance - Costs to make software Y2K compliant may be covered by a current or prior-year insurance policy (this is unlikely but worth checking). * Deadlines - Insurance notice and statute of limitation deadlines are passing by every day. These deadlines depend on things like when the organization knew or should have known about a year 2000 problem. In many cases, inattention and missed deadlines lead to waived legal rights. (Call (202) 626-2742 for a copy of related article, Year 2000 Action - Now, which appeared in the May/June 1998 issue of TechnoScope.) 2. ISSUE: E-MAIL As a newspaper reporter once commented, many people communicate by e-mail as if they are talking with their best friends - and only their best friends - in a private dining room at home. But nothing is further from the truth. Trap: E-mail - including so-called deleted e-mail - has become a huge source of "smoking gun" weaponry in litigation. Several employees and organizations have learned that e-mailed jokes or comments about the boss, the competition, or the organization's products or services are available to litigators. Tip: Implement and enforce a business-only e-mail policy. Also impose an e-mail document retention and destruction policy that is confirmed by technology experts to irretrievably remove all e-mail messages from the association's system, servers, Internet service provider's servers, and all points in between. Have a lawyer review the policy before implementing it. When using e-mail for board or committee work, for example, consider restricting messages to recording decisions and results of discussions rather than creating a verbatim transcript of all banter, preliminary ideas, off-the-cuff comments, and risky criticism. 3. ISSUE: THE WILD WEB There are multiple ways to incur liability on the Internet. For example, the act of a partner in an association's partnership arrangements can lead to vicarious liability for the association. Also, problems at Web sites to which the organization provides hyperlinks may cause linking liability. This type of liability is also incurred when owners of hyperlinked sites claim that the linking is unauthorized. Additionally, there may be intellectual property liability - such as copyright and trademark infringement claims. Trap: Organizations proceed with Web activities without regard and without taking steps to reduce potential liability. Tip: Examine the association's plans and activities on the Web for liability. Find out what exposures the organization is insured for, and confirm your understanding by having your lawyer review your policy. Absent that confirmation of coverage for Web-related claims, assume the association is uninsured. Determine what legal steps the group can take to minimize liability exposure for activities for which it is uninsured. For instance, one way to minimize liability is to develop a Web site legal page. Make it comprehensive, user friendly, and up to date. Items to include are copyright and trademark notices and guidelines for online behavior such as uploading and downloading. 4. ISSUE: WEB SITE DEVELOPMENT CONTRACTS Many Web site development and operation problems are foreseeable. However, organizations sometimes develop sites without proper planning and contractual protection for these problems. Trap: Developers offer to build or enhance Web sites for so little money (even for free) that Web site owners erroneously believe that low contract cost means a decreased need to thoroughly evaluate the contract. For example, one fund-raising organization planned to raise the majority of its $2 million annual budget through contributions from individuals visiting its new site. One vendor offered to develop the site for $500. Clearly, the value of the site was not $500. Yet based on that nominal contract cost, the board authorized equally nominal legal assistance with the contract. Inattention to Web site development contracts could find the developer, not the association, owning the site. This means that the development company can resell or license the site or site software to others and can even close the site down with impunity. Tip: Ignore the site-development cost specified in the contract when evaluating how much legal help to get and staff effort to devote to the Web site development or enhancement contract. Use an attorney with a good contract planning and drafting process to identify and deal with important economic issues such as ownership and control of the site and its content, server, and software. 5. ISSUE: WEB SITE HOSTING AGREEMENTS These agreements often do not exist in writing. But they should. And when written agreements do exist, they are often minimal. But they should not be. Trap: Without protective hosting agreements associations have no written rights to fall back on if problems arise. Some Web site hosts, faced with their own business needs or disputes with the site owner, have posted negative comments about the owner and its members and directors on the site or have shut down the site for one or more days - all without breaching any written agreements. Tip: Take control of the site through a good hosting agreement. Among other protections, this agreement should include maintenance provisions and provide a remedy to the association if the host causes the site to have excessive downtime. (Define excessive in the agreement.) If the site developer is also the host, integrate the hosting and development agreements. In addition, investigate the technical feasibility of dual password and safe-deposit-box-type security to prevent unauthorized postings and shutdowns. 6. ISSUE: WEB-WRAP LICENSE AGREEMENTS Shrink-wrap licenses are boilerplate agreements printed under the shrink-wrap in which many software and compact disk products are packaged. These agreements attempt to impose contract terms on users - terms unknown to users until after they remove the shrink-wrap. Most court cases hold that these licenses are unenforceable. Despite the mixed history and questionable enforceability of shrink-wrap software licenses, some associations include an electronic, shrink-wrap license on their sites. Trap: The history of shrink-wrap licenses, the need to be member friendly, and current efforts to reform state statutes affecting license agreements increase the likelihood that many of these licenses will not be worth the paper on which they are not written. Tip: If the association wants license protection, get competent help to incorporate the latest legal developments. Update these license agreements at least annually. 7. ISSUE: WEB TECHNOLOGY FALLING BEHIND WEB MARKETING Demand for bigger, more complex Web sites has grown faster than technology experts can supply bug-proof software. This could cause disruptive, expensive equipment and service failures. One commentator reports that organizations trying to make these complex sites work "struggle every day to patch system flaws with what one calls 'the three B's: Band-Aids, bubble gum, and baling wire.'" Trap: As associations push for next-generation Web sites, they too may fall into the trap of putting up complex sites with cutting-edge technology that carries an unusually high risk of problems. Tip: Pursue early-stage due diligence when planning next-generation Web sites. Identify risk factors involving the site developer, software, and hardware. Allocate these risks in a negotiated contract. Otherwise, built-in allocation will assign all risk to the association. 8. ISSUE: INTERNET JURISDICTION Some organizations are using the Web without regard to the worldwide legal liability caused by the international nature of the medium. Trap: Associations may inadvertently create plaintiffs in jurisdictions thousands of miles from their offices. Lawsuits far from headquarters can be much more expensive and inconvenient to conduct, even if the association wins. Tip: Develop a policy on where the association is willing to be and where it wants to avoid becoming subject to lawsuits. Use evolving law to limit activities in places on the "avoid" list. For example, steer clear of activities, such as transmitting software across the Internet to be downloaded by purchasers in other jurisdictions, that leave electronic tracks in other jurisdictions. 9. ISSUE: ELECTRONIC CONTRACTS Some organizations - for perceived ease, speed, and the appearance of technological savvy - contract electronically for goods and services. Trap: The law has not yet developed to the point where traditional legal contractual requirements can be reliably handled electronically. For example, the traditional requirement of signatures on contracts is being modernized through digital signatures for electronic contracts. But the technology is still in the early stages of development. Tip: If the proposed electronic contracts are important to the organization, do them - or at least promptly confirm them - in hard copy. Otherwise, there may not be a valid contract. If producing a hard copy is not feasible or is inconsistent with other association needs, get an appropriate lawyer to compare what the association wants to do electronically to recent technology law developments. 10. ISSUE: DOMAIN NAME DERBY A company that registers domain names, Internic, charges $100 for this service. Because of the low price, there is a trend toward not assigning high priority to this task. Trap: Selling domain names has become a thriving business. There is even a Web site that lists domain names for sale. Because too little up-front attention is paid to domain name and related trademark registration, the volume of litigation is growing. Tip: If an association wants to use a domain name for the long term without later paving thousands of dollars for it and without then paying a lawyer tens of thousands of dollars to prevent others from using it, register it promptly and correctly. Get professional help and be sure that person coordinates the domain name and the trademark registration. 11. ISSUE: ATTORNEY-CLIENT PRIVILEGE Although the confidential nature of communication between an attorney and a client is taken for granted, more attorneys and clients are using technology such as cellular and cordless telephones and e-mail to communicate. However, these technologies may not have a reasonable expectation of privacy and thus raise serious doubts about the application of attorney-client privilege. Trap: Using this technology for attorney-client conversations may lead to a court forcing associations and their attorneys to reveal prior discussions that they assumed were confidential. Such disclosure may have disastrous economic effects for organizations. Tip: Treat sensitive matters with care when communicating with lawyers. Do not use insecure media such as e-mail and cordless and cellular phones.
Article Source: http://www.rightarticle.com
Did you find this article useful? For more useful tips and hints, points to ponder and keep in mind, techniques, and insights pertaining to Google Adsense, do please browse for more information at our websites. www.100computertips.com
Please Rate this Article
5 out of 54 out of 53 out of 52 out of 51 out of 5
Not yet Rated
Powered by Article Dashboard
