June 2010

3 Privacy Tips for a Software or SaaS Company(Courtesy of the US Supreme Court in 2010)

Well, while the US Supreme Court in its decision in the case of City of Ontario vs. Quon (June 17, 2010)–an employee privacy expectation case (actually, a sexting case involving a SWAT officer)–intentionally tried not to provide a lot of specific guidance, there are some take aways.

1) Computer/Technology Usage Policies Matter. The US Supreme Court seemed to make a big deal about the fact that that the computer policy in this situation was clearly communicated, as were changes to the policy (i.e. its applicability to text messages). Note to Self: Create policy and make sure we communicate material changes to all employees.

2) Intent of the Search Matters.  In this instance, the employer initially performed the search to see if there was excessive use by the employee of the employer owned device (pager), as the employee was footing part of the bill. The court seemed to like the fact that the initial intent was related to the proper allocation of expenses between the employee and the government, so why the search is being performed is a big deal. Note to Self: Make sure that we have the right people involved in deciding on when and how to perform any type of employee data search (i.e. so that the search is performed for the right reasons and in the right way).

3) Managers Shouldn’t Try to Change Written Company …

Everything a Software or SaaS Company Needs to Know About Copyrights!

Ok, maybe not everything, but as a software copyright attorney I suggest that you read these five blog posts if you run a Software, SAAS or IT company. Let me summarize why.

First, you need to know how copyright fits in with other intellectual property.

– What is Intellectual Property?

Second, you should understand the basics of copyright law.

– 4 Things to Remember About Copyright Law.

Third, you should think through the benefits of registering your copyrights.

– 4 GREAT Reasons to Register Your Software for Copyright Protection.

Fourth, is it worth trying to obtain copyright protection for your software’s GUI?

– Can You Obtain Copyright Protection for Your Software’s GUI?

Fifth, do you know the difference between copyright and contract protection?

– Contracts vs. Copyright Protection. What is the Difference?

If you make it through these five, you should have a good sense of some of basics and important issues to consider regarding copyrights.

Great job! Class dismissed.

Legal Disclaimer:

This is for informational and educational purposes only, and is not legal advice.…

Contract or Policy?

Which One Does a Software Company Need and When!

While this is a complex issue (like many legal issues), from the perspective of a software and SAAS attorney, I think there are some practical tips to remember when thinking about when to use policies and when to use contracts.

FIRST, THE DEFINITIONS. Policies are generally defined as a set of basic principles and guidelines, formulated and enforced by the governing body of an organization, to direct and limit its actions in pursuit of long term goals (i.e. soft commitments).  Contracts are generally defined as a voluntary, deliberate, and legally enforceable (binding) agreement between two or more parties (i.e. hard commitments).

SECOND, 3 TIPS TO REMEMBER!

1) When to Use a Policy. Policies communicate how you plan to operate your business (whether internally or externally), and you can generally change them at any time. However, if you change them you need to think about if you need to notify/inform the groups impacted by the policy change (not necessary their approval for the change, but simply notifying them of the change). Also, remember that courts generally look at written policies as a form of a commitment, and don’t like it when a company violates its policies.

Examples: Internal (HR, IT, and Sales Compensation Policies) and External (Support and Privacy Policies). I recommend that you notify all the impacted customers, employees, etc. if possible of material changes to those policies. It is pretty hard …

4 GREAT Reasons to Register Your Software for Copyright Protection!

Most people may not realize that there are 4 GREAT reasons to register your software for copyright protection with the US Copyright Office.  As a software copyright attorney or lawyer, I recommend this for every software based company, whether you are licensing your software or providing it as a service.  So here goes.

1) EASY. It can be done by yourself or with the help of a software copyright attorney. Your call, but any good lawyer will tell you to consult with a software copyright attorney before you file.  In general though, it is not hard to file for copyright protection, so this is not an issue.

2) INEXPENSIVE. The filing fee is low (less than $100) so that is not a barrier either.

3) REIMBURSEMENT OF ATTORNEY’S FEES.  If you file a claim for infringement based on a registered copyright that existed before the infringement, federal copyright law provides that you could be reimbursed for your attorney’s fees. If you think about it, this is really a big deal, as it is extremely rare that plaintiffs in a case are reimbursed for their attorneys fees. This can be a double edged sword though, as if you lose you may be paying for the defendant’s attorney’s fees (i.e. something to definitely discuss with your lawyer before you file the case). To have a shot at being reimbursed for your attorney’s fees though, you need to file …

Hiring an Offshore Software Developer?

5 Things to Remember in Your Software Development Agreement.

As a software attorney, I think there are a few practical things to think about when using an offshore software developer/outsourcing software development, and negotiating the software development agreement. As you know, this has become commonplace, even for smaller Software, SAAS and IT services companies. Here are a few thoughts, from a software attorney.

1. Ownership Rights. While I am sure you saw this issue coming, make sure you document it very clearly, and address ‘work for hire’ copyright, pre-existing code, open source licensing, patent issues, etc. There is a lot to think about so dig in and get it right.
2. Termination Rights. Think about it, you know that this relationship will not go on forever, so the termination rights in the contract will be exercised (relatively soon). I would spend a fair amount of time with your software lawyer detailing what happens upon termination and how your property is returned to you (hardware, software, etc). Also, I suggest you should be able to terminate (without cause) on much shorter notice than the service provider, so think about that practical issue too.
3. Gap between Expectations and the Contract/SOW. While this is not purely a legal issue, in a way it is the most important issue.  One of the main purposes of a contract is to communicate and outline which party is responsible for what and when. Take ownership of these important details, and don’t delegate this to

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