Contracting Shrinkage
February 5, 2007 | Filed Under Litigation, Technology
Does EULA stand for Everyone’s Upset at Legalese Always?
Cory Doctorow knows what EULA means and turns an insightful eye to the shrink-wrap variety of these consumer “agreements” in Information Week. He wonders if litigation is looming over some of the more excessive examples of such adhesion contracts masquerading as software licenses:
We seem to have sunk to a kind of playground system of forming contracts. Tag, you agree! Lawyers will tell you that you can form a binding agreement just by following a link, stepping into a store, buying a product, or receiving an email. By standing there, shaking your head, and shouting “NO NO NO I DO NOT AGREE,” you agree to let the other guy come over to your house, clean out your fridge, wear your underwear and make some long-distance calls.
(I think this is an example of the objective theory of contracts my professor made me aware of through a Socratic bludgeoning with Lucy v. Zehmer).
Then Mr. Doctorow gives an example of the license that accompanies Microsoft’s new Windows Vista OS:
For example, Vista, Microsoft’s new operating system, comes in a rainbow of flavors varying in price from $99 to $399, but all of them come with the same crummy terms of service, which state that “you may not work around any technical limitations in the software,” and that Windows Defender, the bundled anti-malware program, can delete any program from your hard drive that Microsoft doesn’t like, even if it breaks your computer.
And finally speculation on what business might be forced to do if it took all EULAs seriously:
If you wanted to really be careful about this stuff, you’d prohibit every employee at your office from clicking on any link, installing any program, creating accounts, or signing for parcels. You wouldn’t even let employees make a run to Best Buy for some CD blanks — have you seen the fine print on their credit-card slips? After all, these people are entering into “agreements” on behalf of their employer — agreements to allow spyware onto your network, to not “work around any technical limitations in their software,” and they’re agreeing to let malicious software delete arbitrary files from their systems.
Law is at its worst when it does what it can rather than what it should.
Clearly there should be some shrinkage when it comes to over-reaching EULAs and other consumer contracts. C’mon, people, everyone in the pool.
Cisco GC Talks Real Legal Tech
January 30, 2007 | Filed Under The Client Speaks, Law Firm Trends, Technology
The 25th anniversary LegalTech conference is going on in New York City as we speak. Many good people are speaking; good solutions are on display.
Moving West, there’s a different take on legal tech. It’s in the form of a speech by Cisco GC Mark Chandler (hat tip: WSJ Law Blog).
Simply stated, the speech defies a capsule summary. Every in-house lawyer should read it; every law firm managing partner should make it a discussion piece at the next firm meeting. Mr. Chandler isn’t talking about incremental tech-driven change in the approach to delivering legal services to business.
The phrase “paradigm shift” is overused, but that is exactly what Mr. Chandler is talking about: using technology to lower costs and improve legal services, current billing conventions be damned.
Print out Mr. Chandler’s speech, and read it with a highlighter. It really should be the starting point of a discussion. Not a debate, because change isn’t negotiable for forward-thinking GCs.
My personal favorite is this excerpt:
The bottom line is that I’m driven by the same need for productivity improvements as is the rest of the company. It’s simple. As Cisco gets bigger, the share of revenue devoted to legal expense needs to gets smaller. Letters from law firms telling me how much billing rates are going up next year are therefore totally irrelevant to me, or as we say in Silicon Valley, orthogonal to my concerns. Think about it: not one of the CIOs of your firms expects to get a letter from Cisco explaining how much more our products will cost next year. And not one of our suppliers comes to us to tell us how much their prices will go up next year. So from my perspective, I don’t care what billing rates are. I care about productivity and outputs.
I have also written about the annual law firm rate-ratchet-racket. Some firms still see annual increases (up to 20%!) as an intrinsic part of the their business model. Good luck with that…
One last thing in the vein of full disclosure: I have seen a beta version of the Legal On Ramp site Mr. Chandler mentions; content from The Wired GC may be offered to participants.
iTalk, iPhone, iSue
January 12, 2007 | Filed Under Litigation, Technology
So Apple announces the iPhone and toys with Cisco about licensing its trademark.
Cisco GC Mark Chandler took the time to blog on the company line. Here’s my favorite part:
At MacWorld, Apple discussed the patents pending on their new phone technology. They clearly seem to value intellectual property. If the tables were turned, do you think Apple would allow someone to blatantly infringe on their rights? How would Apple react if someone launched a product called iPod but claimed it was ok to use the name because it used a different video format? Would that be ok? We know the answer – Apple is a very aggressive enforcer of their trademark rights. And that needs to be a two-way street.
No response yet from new Apple GC Donald Rosenberg; he’s probably still unpacking his bags. And Apple employees don’t blog. But they certainly can innovate.
Forbes wonders if this is a ploy for publicity by Steve Jobs; Marty Schwimmer has the complaint and was first to file on the issue of Apple’s actions prior to announcing the iPhone. IP Attorney Brian Banner thinks Apple and Cisco may eventually share the iPhone moniker.
Denise Howell had early thoughts on the bigger picture: the iPhone from the user’s standpoint; ZDnet colleague Ed Burnette says some experts think Cisco may have lost the trademark last year.
Update: Cisco responds to these trademark questions.
Sun’s GC on Reg FD and the SEC
December 18, 2006 | Filed Under Technology, Regulation
Sun general counsel Mike Dillon extends his leadership position on the web and corporate disclosure in Business Week online.
Mr. Dillon, working with Sun’s CEO-blogger Jonathan Schwartz, were first-movers behind an attempt to again more flexibility under Reg FD from the SEC for corporate disclosures via the web. In his words,
As Sun’s general counsel and corporate secretary, I strongly support this view—and beyond just executive blogging and investor transparency. Openness and transparency are critical to conducting business in today’s global marketplace. Markets are conversations. Openness and authenticity are vital factors in the sales cycle and in bringing products to market.
Mr. Dillon’s original post on the subject is here, and Mr. Schwartz’s is here (which has the original letter to SEC Chairman Cox).
More CEO and GC bloggers will help; a tip of the Wired GC cap to Sun. And this site could handle increased readership if I could get a beta version of one of these things in my backyard:
Wired GC — Unplugged Show #7
October 26, 2006 | Filed Under International, Unplugged - Audio, Technology, Compliance
“Publishing With Principle”
The printed word has come a long way since Gutenberg. The reach of “traditional” and “new” media is now worldwide and immediate. With these new technologies come new responsibilities. Some publishing companies and even individual bloggers have run afoul of laws in several jurisdictions.
In today’s audiocast, we talk to Charles J. Glasser Jr., media counsel with Bloomberg News and author and editor of the “International Libel and Privacy Handbook.” Its subtitle notes that it is intended as a “Global Reference for Journalists, Publishers, Webmasters, and Lawyers.”
Mr. Glasser also provides for listeners a glimpse into the life of a counsel to a leading media company and gives key insights into how to make compliance with law a reality in a business that really never closes its doors.
Today’s show is here (just click on the “mp3″ link):
mp3 (15:03 min; 3.4 mb)
Show Notes:
– Mr. Glasser’s book is available on the Bloomberg website, which contains biographical information as well.
– This book is also available on Amazon here.
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