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.
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