California law requires Web sites to "conspicuously" display a privacy-policy link
May 30, 2008
Saul Hansell at the NY Times concludes that Google is in violation of the California Online Privacy Protection Act of 2003 because it doesn’t "conspicuously" display a link to its privacy policy.
Excerpt: "… a 2004 analysis by law firm Cooley Godward Kronish doesn’t list any other option for conspicuous notice other than placing the privacy policy itself or a link to it on a site’s home page. And the California Office of Information Security and Data Protection offers this recommendation to Web sites:
Use a conspicuous link on your home page containing the word “privacy.” Make the link conspicuous by using larger type than the surrounding text, contrasting color, or symbols that call attention to it.
Lawyers’ outsourcing of client data may jeopardize attorney-client privilege
May 24, 2008
Some lawyers are concerned that if they outsource legal work to non-U.S. firms, they could be jeopardizing the attorney-client privilege because of the U.S. Government’s position that it is free to monitor communications with foreigners. See this Legal Times article about a lawyer suing for a ruling on that point. (Pedro Ruz Gutierrez, Law Firm Files Suit to Bar Outsourcing of Client Data [sic], Legal Times, May 27, 2008)
Autodesk court case: Can shrinkwrapped software now be legally reverse-engineered?
May 23, 2008
If you’re a software vendor, you need to know about this recent Autodesk case, holding that typical software "license" transactions are in fact sales of copies, which the purchaser is free to re-sell under the First Sale Doctrine in copyright law.
If the court’s reasoning is upheld on appeal, software vendors might find themselves legally unable to stop their customers from reverse-engineering the software.
They might also have a more difficult time asserting trade-secret rights in the executable code.
Court smacks Autodesk, affirms right to sell used software
Protect your laptop’s sensitive information before entering the U.S. - a customs agent might decide to peruse it
May 16, 2008
Contracts should explain their terms as necessary
May 2, 2008
I couldn’t disagree more strongly with my friend Ken Adams’s comment that, apart from the opening recitals, “in a contract you don’t reason or explain. You just state rules.” That’s way too categorical a statement for my taste. Contracts are read and followed by people, not by computers, and people sometimes need to be persuaded to do the things they’re theoretically supposed to do. That’s where it can be extremely helpful to record reasons and explanations into a contract.
Suppose Company A signs a contract requiring it to do X. It won’t necessarily happen that way automatically. One or more people need to make X happen, and those people might balk at doing so:
- Company A’s management might decide they want the company to do Y instead of X because of changed circumstances.
- Or it might be that Alice at Company A negotiated the contract, but her colleague Allen is now responsible for making X happen, and Allen thinks doing X is a bad idea.
If Company A’s lawyer can think of even a faintly-plausible rationale for not doing X, the odds are that the company will simply fold its arms and say “nope.” (I speak from hard experience on this score.)
That’s where reasons and explanations can come in handy: If the contract explains the business reasons that Alice committed the company to doing X, there’s a better chance that Allen will understand her reasoning and go along with her commitment.
The same is true in contract litigation: Judges sometimes need to be persuaded too. This is especially true if there’s more than one way to read the contract — again, this is where reasons and explanations can come in very handy.