The Business Technology Law Blog
The Business Technology Law Blog

Requests For Proposals - Do It Right Already! (Part I)

Most companies have no idea how to draft a RFP. On the flip side, most vendors have no idea how to respond to a RFP. When a poorly written RFP meets an inadequate response, we end up with the perfect (legal) storm of litigation. (If you like litigation, then stop reading and call your therapist.) Enough already. Let me teach you some things that will save you hundreds of thousands of dollars. Maybe more. << MORE >>

Public Information = Trade Secret? Yes, Says the Tenth Circuit.

Trade secrets are your company’s most valuable assets.  But what if your company’s secrets include public domain information?  Does the inclusion of public domain information destroy the secret?

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Ambiguity: When Good Contracts Go Bad

Ambiguity is the number one reason why good contracts go bad. Ambiguity is the gasoline that powers the commercial litigation engine. It is the coal that’s shoveled into the furnaces that keep litigators warm and cozy at night. I know that litigation is sometimes a necessary evil—but when litigation arises from ambiguity in a contract, it is not necessary. It is sad. ...<< MORE >>

Plan Ahead If You Want to Arbitrate Your Outsourcing Agreement

A few years ago I was asked to present a paper I wrote at the Practising Law Institute's "Outsourcing Revolution 2004" symposium, entitled "International Arbitration as a Method for Dispute Resoltuion in International Outsourcing Agreements."

I've referred back to the document from time to time, and it can be found on Westlaw and Lexis as well.  The information in the document is still as valid today as it was in 2004.

And now, for those of you who are drafting international outsourcing agreements for your clients or your companies, I'm providing my paper to you right here....

Actually, if ...<< MORE >>

A Message from Florida Condo Associations to their Cable Companies: "You're Outta Here!"

The Comcast v. L'Ambiance Beach Condominium Association, Inc. decision, which was handed down this week, will have a HUGE impact on (i) a condo association's ability to terminate cumbersome bulk cable tv agreements, and (ii) the way cable operators negotiate bulk cable agreements with Florida developers. ...<< MORE >>

No Room at the USPTO Inn for Hotels.com

Hotels.com cannot obtain a federal trademark registration in its name, says a federal court in California.  The court's decision, which was issued last month, is a great lesson about what words can (and, more importantly, cannot) be registered as a federal trademark.

Most people think that virtually any word or phrase can be registered as a trademark, so long as the word or phrase is used in conjunction with a business.  Those people are wrong.  There are rules to be followed in the trademark process, and I'm about to describe some of the more important rules to you now. 

If you're ...<< MORE >>

What's In An IP Address? Not Personal Information, Says The Court.

What’s in an IP address? Apparently, not everything—-or so says a federal judge in Seattle. In my opinion, the recent decision in Johnson et al. v. Microsoft Corp. (No. 06-CV-0900-RAJ, W.D. Wash. Seattle Div. June 23, 2009) is right on target—IP addresses are NOT personally identifiable information. But the case reminds us that the lines between privacy and information technology are getting blurrier<< MORE >>

Privacy & Cloud Computing: It's a Creature of Contract (Part II)

Let's talk a little more about privacy, security and cloud computing.


I began my last blog entry by announcing that cloud computing is not a threat to privacy or security.  (Nothing has changed in the past few weeks—it's still not a threat to privacy or security).  I also argued that issues of privacy and security in the cloud computing arena (i) are directly connected to the quality of the contracts that govern the cloud-based transaction, and (2) will not necessarily be ...<< MORE >>

Privacy & Cloud Computing: It's a Creature of Contract (Part I)

Let's talk about privacy and cloud computing.  Lots of pundits believe that cloud computing spells the end of consumer privacy.  Many critics say that with cloud computing, your data can never truly be safe.

I won't say those pundits are wrong——oh, wait.  I will.

They're wrong.  They're really wrong.  And I'm going to tell you why, in detail.

Before I do, let me give you a working definition of what cloud computing is, and what it isn't.

Simply put, cloud computing is the ability to access services over the Internet without having to own or host those services on your own computer.  Too complicated for you?  Let me boil out the techno-lingo and put it this way:  if you access it using the Internet but you never loaded it into your computer, then it's likely a cloud computing application.

Examples of cloud computing applications:  Google Apps.  Snapfish. Yahoo mail.  Hotmail.  (Have I hit one that you're familiar with yet?  NoReally?  Ok, let me keep going....)  Twitter.  Facebook.  Photoshop Express.  Mozy.com.  BitTorrent.  iContact.com.

Cloud computing is NOT a thing, or a technology, or a particular piece of hardware or software.  It's a concept, an idea.  It's a way of doing things—and it's the way you'll be doing things in the not-too-distant future.

Now let's get back to privacy.

Some people say that if it isn't on your local computer, you can never be sure (i) who will see it, (ii) who can take it, (iii) who can use it, and (iv) who can alter it.  This argument, which I call the "Local Is Always Better" argument, can be found in virtually every attack on cloud computing's ability to keep private things private. 

I've perused the Web and found some specific attacks against privacy and cloud computing—let's see how the "Local Is Always Better" argument rears its (very ugly) head in these attacks, and how your hero—that would be me—defends cloud computing against these attacks.

Attack 1 (a/k/a the "I Hate A Tough Contract" attack):   Cloud computing relies on private agreements between users and cloud computing service providers.  Consequently,
service providers could change their terms of service with little or no notice to users of the service.  Also, there may be inadequate or unenforceable remedies against providers who suffer a data breach or who misuse data in their possession.

Defense:  Cloud computing is, indeed, a creature of contract.  So here's what you need to do: READ YOUR CONTRACT.  (Leave it to an attorney to come up with a revolutionary idea like actually reading something before you agree to it...)  If you don't like the terms, then don't use the provider.   For example, if the contract says, "Provider can change the terms of this Agreement without prior notice to customer," then run for the hills. 

If the provider doesn't require you to accept a contract, then that's no good either.  Remember: any company whose motto is, "The rules are, there ain't no rules", doesn't deserve your business.

If you don't understand the terms, then call your attorney.  But you say, "I don't have an attorney."  You also say, "What should I look for to know if the cloud computing contract is any good?"  Great question (glad I asked it).  Contact me and I'll send you my white paper, "Cloud Computing Agreements: A Primer for Consumers." 

Attack 2 (a/k/a the "It's a Superstore" attack).  Cloud computing applications will become monopolized and centralized in the hands of a few powerful providers, decreasing competition and attracting hackers to "high value" targets.

Defense:  Cloud computing has been around for decades, and it has yet to become monopolized by any single company or group of companies.  Why?  Because one company can't be all things to all people.  The services demanded by consumers are so varied, that any company that tried to tackle all of those services (or even most of them) would be committing suicide, and would be highly vulnerable to smaller, nimble niche players.  

The argument that cloud providers would attract hackers is utter nonsense.  Does Walmart attract more burglars because there's more stuff inside to steal?  As long as technology abounds, hackers will be unwelcome but ever-present guests.  Hackers hack; that's what they do.  You don't run from hackers; you build a bigger and stronger wall around your stuff.   (Hmmm, here's a thought: do you think that security solution providers have started building apps that are cloud-specific?  Might the cloud virtually eliminate the need for security software on your local computer?  Something to think about....)

Yes, I know that certain cloud computing applications have been hacked recently.  But if you think about the number of people who use those applications, and the number of attacks that have been launched unsuccessfully against those applications, you'll soon realize that cloud computing is probably the safest way to travel along the (cliché alert!) Internet superhighway.

Ok, that's it for now.  Part II of this entry is coming up in a few days, at which time we'll explore some other attacks on cloud computing's ability to keep things private.....

 

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Text + Send = Call? Absolutely!

Fact: There's a federal law that says that you can't make a call to a cell phone number (unless it's an emergency call or the recipient gave his permission to receive the call) using any automatic telephone dialing system or an artificial or prerecorded voice.  (Let's call this law the "Telephone Consumer Protection Act", or "TCPA" for short).

Fact:  Lots of companies send text messages—not "calls" per se, but messages—to cell phones across the country, and think they can avoid liability under the TCPA. 

Why? 

Because a text message isn't a "call", it's an SMS (or "short message service").  And that's not a "call", is it?

Well is it?

For the answer, we go to the Court of Appeals for the Ninth Circuit, which just handed down its decision in the case—dare I say, battle royale—of Satterfield v. Simon & Schuster, Inc

The ruling is important, but even more interesting when read using a Howard Cosell voice.  (Hey, it's my blog, and I'm being creative here.  Work with me.  When I ask you to use your best Cosell voice, please do so.  If you need to remember what he sounded like, go HERE.) 

Now on to the case....

In one corner we have Satterfield, who received a text message from Simon & Schuster which, she claimed, she did not consent to receive.  (Cosell: Horrors abounded for Ms. Satterfield.)

In the other corner we have the famous publishing house Simon & Schuster, which was responsible for sending the text message to Satterfield through a somewhat convoluted affiliate relationship it had with other marketing companies. (Cosell: The tenacity shown by this powerhouse publishing company was nothing short of incredible.)

Let's go to the videotape.  Here's a blow-by-blow account of the fight....(you have my permission to read all of this as Cosell).

In the opening round, it's Satterfield—receiving a powerful, hard-hitting text message squarely on her cell phone.  It's a promotional message for a new book by Stephen King.  Satterfield was totally not expecting that.

Satterfield counters with a litigation uppercut—a federal lawsuit against Simon & Schuster alleging that the publisher violated the TCPA by sending her the unsolicited text message using an automatic dialing system.  Simon & Schuster is momentarily stunned by the courage of young Satterfield.

Simon & Schuster counters, arguing that the TCPA only prohibits "calls" and a text message is not a "call".  Satterfield is literally being pounded with legal ambiguityBlinded by legal loopholes, she can barely see the shimmering glimmer of her cell phone nestled in its leather case.

The referee looks to the TCPA for a ruling...but there's no definition for the word "call" under the TCPA.  What to do?? It appears that Satterfield is doomed, the victim of a legal rope-a-dope the likes of which have not been seen since Ali sued his former manager back in 1999.

But wait—the Court of Appeals for the Ninth Circuit just jumped into the ring—and brought the FCC with it!  Examining the legislative history behind the TCPA, the Court rules that the FCC intended to include "text messages" when it used the term "call" under the TCPA.

It's a victory for Satterfield! 

The bottom line:  the law can't keep up with the changes in technology, so you have to expect that courts will expand the meaning of older laws to include newer technologies.  

The (really bottom) bottom line:  if your company is using text messaging to promote its products or services, you need to speak with an attorney about how to do it legally.  A year ago I wrote a white paper on how to incorporate text messaging into your marketing plan without violating the law, contact me if you want a copy.

I hope you enjoyed this broadcast.

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