Copyright: varijanta

This column is a lawyer's lament.  I'm getting soooo tired of bad contracts and bad contracting practices.  Yet, they are what I see every day in the world of technology contracts, and things are not getting any better after all these years.   READ MORE >


Confidentiality agreements are among the most common type of agreement I write as a lawyer. The parties inevitably want one regardless of the type of deal.  From a Fortune 500 company’s cloud computing, software as a service, licensing, telecom, or outsourcing deals to a startup’s website development deal, they all think that they need confidentiality agreement in place for even preliminary discussion. After doing this stuff for nearly thirty years, here are some tips from the deal negotiation trenches.

Let’s start with the common misconception that there is a “standard” confidentiality agreement sitting on my hard drive waiting to be printed. (When I started practicing law, people thought that the “standard” form was in my drawer and I filled in the blanks with a typewriter. Times and technology have certainly changed, but the myth of the “standard” form has not.)  READ MORE >


It's a nightmare scenario. You're in charge of your company's major website redesign project and the site is horrendous. Even your mother hates it. As you consider where to mail your resume, you might want to consider what you'd do differently next time.

Tech projects fail for many complex reasons. I've litigated those fiascoes.

One recurring theme is communication failure, which easily occurs when you have techies, business people, bean counters and lawyers in one room pretending to speak the same language.  READ MORE >


Why is it that intelligent and well-educated people believe that copyright law doesn't apply to the Internet? It might be because copying is so easy to do. Maybe it goes back to the almost utopian and non-commercial origins of the Internet. Whatever the reason, it's a myth.

The simple fact is that copyright law applies as much to material posted on a website as it does to material printed in a book. It's not necessarily okay to save a picture from somebody's website and reuse it on your website.  READ MORE >


We are collecting data at ever-increasing rates as the costs of data storage go down.  Why get rid of our beloved data when we can always buy more storage space?  Some companies like Google love collecting and working with data, and these companies will rarely or never get rid of their data.  This column will focus on crafting an effective data destruction policy

Unfortunately, over time, often a company’s storage of data starts to resemble the crazy old hermit’s house with newspapers dating back fifty years stacked floor to ceiling.  Instead of newspapers, your company is drowning in old digital data.  While you may have a method to your madness and know where everything is, you probably do not need all of your old outdated data.  To fix this mess, your company needs to figure out what data it has and create effective policies for disposing of it.  READ MORE >


Seemingly innocuous documents can haunt your company in a courtroom. The best defense is destroying documents. If you do it right, you're legal and safe. If you get it wrong, you may find a judge accusing you of destroying relevant evidence. The answer is a well-formulated document retention policy (DRP).

While I admit that nobody will ever win a business leadership and vision award from the Chamber of Commerce for giving time and attention to the development of a DRP, you need to do it. It's like sleep. You may not feel like it's productive time, but you shouldn't try to live without it.  READ MORE >


Providing access for employees to email, the Internet, and other technology has become indispensable to your company’s business operations. Your employees use of technologies like email, cloud computing, SaaS systems, and external social networks can greatly increase their productivity. But beware; potential liability may follow such use in ways you can’t imagine. What follows are some hints for staying out of trouble.

Many employers have reacted to the risks associated with the employee’s use of technologies such as email and the Internet by installing filtering and monitoring devices. While this may be the right step for some, it’s not the most important step to take and it’s not right for everybody.  READ MORE >


As a tech lawyer, the thing that I do more than anything else is negotiate. Almost every time I take a phone call or meet with somebody, I'm negotiating something. Most people are so unskilled at it that sometimes it feels like taking candy from a baby.

This column will be the first in an occasional series on improving your negotiating skills, which are central to tech deals and litigation, and every other type of business deal.

Negotiating skills transfer to deals of all sizes. So, it could be your new multimillion dollar SaaS or outsourcing deal down to a much smaller cloud computing deal.  READ MORE >


This week's column is another in an occasional series on the art and science of negotiating. Whether it's a tech deal, a lawsuit or any other type of business deal, you're going to need to bring the same negotiating skills to the table.  READ MORE >


Probably the most difficult contract drafting task that a tech lawyer faces is for custom software development. The mission is to create some certainty and objective standards for something that doesn't exist yet. Here are some tips from the trenches. READ MORE >


It is time for companies to take their blinders off.  Social networking is not going away.  You can choose to embrace it now or wait until your company is the last one in.  Either way, your company will use social networking at some point.  Why wait? READ MORE >


Enterprises are increasingly willing to rely on data storage in the cloud and software as a service (“SaaS”) solutions.  These are significant changes from the traditional software model where you store your data locally and your enterprise licenses the software it uses.  This article will discuss some unique contract considerations in SaaS deals and how SaaS deals differ from traditional software licenses. READ MORE >


In the world of software, things always change.  All too often, Vendors introduce new products with new features, give the new product a new name, and then leave you without an upgrade or migration path that you find desirable.  Having spent six, seven, or eight figures on your enterprise software you could find yourself in a weak negotiating position if you did not consider this possibility when you negotiated your original deal. READ MORE >


Have you ever had the feeling that your outsourced tech project would never stop growing? Have you ever felt like it’ll never be finished? Your project may be suffering from “scope creep.” READ MORE >


You have finally signed that big deal that took forever to negotiate.  Regardless of whether it was a SaaS, managed services, or cloud computing deal, you are just glad the deal is finally wrapped.  After pen is put to paper and the contracts are all signed, you pop the corks, thank your tech lawyer for his great work, send him home, and get back to your “normal” duties as CIO.  The legal part is mercifully over and now you can get back to business sans lawyers. READ MORE >


The world of computers and information technology (“IT”) has developed some unusual norms in warranties and allocating risk. In other industries, they might seem absurd, but not in IT. As long as you understand the significance of the way IT contracts are done, you can come to a fair deal. READ MORE >


In the world of tech deals — more than other types of deals — my clients want to sign nondisclosure agreements quickly. I'm sure that many people will disagree with me on this one, but I like to avoid NDAs in the early stages of a deal. My feeling is that you shouldn't be exchanging secrets with strangers and that doesn't change no matter what they've signed. READ MORE >


Tech related deals sometimes lead to disputes just like any other type of agreement. It might be a software development deal gone sour, an outsourcing deal straight from hell or whatever, but things go wrong. When they do, lawsuits often follow. This is your "how to" on negotiating your way out of a major dispute involving technology. READ MORE >


I started my career in a mid-sized law firm doing sophisticated corporate deals about 28 years ago.  Just over 20 years ago, my practice evolved into doing sophisticated tech, telecom and outsourcing deals.  With this evolution, I found new contracting norms.  The most significant was that I went from a world of good first drafts of agreements prepared by competent lawyers to a world where first drafts often came from illiterates.  This article is a how-to guide to get you from illiteracy to a workable and fair agreement. READ MORE >


As a tech lawyer, the thing that I do more than anything else is negotiate.  Almost every time I take a phone call or meet with somebody, I’m negotiating something.  Most people are so unskilled at it that sometimes it feels like taking candy from a baby.  Here’s a primer on improving your skills. READ MORE >


Businesses buy IT-related goods and services all the time. The variety of such goods and services available today is just staggering compared to when I started practicing technology law.  Businesses are buying everything from cutting edge cloud computing and software as a service (“SaaS”) systems to creating internal and external social network applications.  They’re also still buying more traditional IT goods and services like consultant’s and technician’s services, custom programming services, managed services, software and hardware. READ MORE >


Let’s say you’re a smaller software developer who custom creates software with a hefty price tag.  Normally, you give your customers onsite service with a fast response time.  In fact, central to your reputation in the industry is your reputation for support.  Of course, you’re able to do what you do by selling only within 100 miles of your office. READ MORE >


The theme of this article is negotiating effectively as a team. If you ever saw the movie “The Godfather,” you may remember a scene where the “Godfather’s family” is negotiating getting into the illegal narcotics business with another family.  The Godfather is adamantly opposed to selling drugs.  His son though (played by James Caan) chimes in over his father and says that maybe pop is wrong. READ MORE >


Negotiating a deal by telephone is practical and can be effective for simple deals that aren’t important to you.  As for complex and important deals, my advice on negotiating by telephone is simple and easy to express-- don’t.  See, I didn’t even need a sentence to say it. READ MORE >


Tech related deals sometimes lead to disputes just like any other type of agreement. It might be a software development deal gone sour, an outsourcing deal straight from hell or whatever, but things go wrong. When they do, lawsuits often follow. This is your "how to" on negotiating your way out of a major dispute involving technology. READ MORE >


This column is another in a continuing occasional series on the lost art of negotiating. The theme this week is negotiating effectively as a team. READ MORE >


When clients come to me asking for an evaluation of their remedies because their tech deal has gone sour, the single worst remedy and lawsuit killer I often find in existing tech contracts is that “standard” limitation of liability clause. It never ceases to amaze me how people do not pay attention to these provisions as they blithely sign-off on a one-sided agreement. It’s just one little clause and yet it can cause so much damage. READ MORE >


An improperly created website can breed lawsuits. It's not the place to test the limits of the law. Once you put information out on the Net, it's there for anybody to see. It's the ultimate in unrestricted access. You might create a site for potential customers, but your competitors and enemies get to see it too. A cautious and conservative approach is the way to go. How cautious you need to be will vary depending on several things. The preventive medicine is a legal audit of your website. READ MORE >


In the connected world that is 2009, almost every company has a trade secret that it wants to keep. Between BlackBerries, home email accounts, and USB ports that can write gigs of data to a flash drive, it’s only getting harder to protect those trade secrets. READ MORE >


Good morning. It’s almost hurricane season again. Do you know where your Disaster Recovery Plan (“DRP”) is? Does your business even have a DRP? READ MORE >