Common Misconceptions about Tech Law

27 December 2001

I'll grant you that tech law is a relatively new legal area compared to let's say real estate law. I can summarize the difference this way. When a tech lawyer talks about a case that's a golden oldie, he's probably talking about one that's three years old. For a real estate lawyer, the golden oldie is probably 300 years old. Still, that doesn't make it any easier to explain the fundamental misconceptions even bright and sophisticated people have about tech law. Let's dispel some.

The Internet Is the Public Domain

This one's my favorite. If you publish something on the Net, legend has it that it's in the public domain. If this were true, it would mean that you have no copyright protection and that anybody could use the stuff you created for any purpose with or without your permission.

Uhh. . . that's wrong, like really wrong, like get you sued wrong.

I suppose that this one comes from the early pre-commercial days of the Net when it was primarily a playground for academics and government. Myth would have it that in those days, the Net was more like a hippie commune from the 60's than the money-centric, e-commerce, big-company dominated thing it is today.

Ironically, publishing material on the Internet even in the early days didn't mean you lost your copyright. Simply put, publishing material on the Internet does not mean and has never meant that you give you up any of the protections that copyright law offers.

While the Net may raise some questions that are uniquely online issues, this doesn't mean that the basics change. Sorry, but you can't copy another website and make it your website. This is true even if you can't find a "©" anywhere on the site.


Another misconception is that if you say it online, it can't be libelous. This is another one that could cost you in a courtroom if you're not careful.

If you accuse your competition of bad things that aren't true on your Web site, in a chat room, in a newsgroup posting (newsgroups are a somewhat less used part of the Internet world and are analogous to an online bulletin boards) or in an email, you can get sued for libel just as quickly as if you had done it in a newspaper. Digital information counts. It's really that simple.

Be warned: You need to be sure that your employees know that they and you can be sued for libel based on what they say online.

Attorney's Fees

When clients come to see me because they want to sue somebody, they inevitably end their angry rant with "and I want the [expletive deleted] to pay my attorney's fee too." Many people think that if they win, they automatically get their fees paid by the loser. That's wrong.

The general rule in the United States is that each side pays their own attorney--win or lose. What you need to know is that you can often change this rule if you want, but bear in mind that this can be a two-edged sword.

In the tech world, the most important exception to this general rule is that if you have a contract that says something like, "In the event of litigation between the parties to enforce the provisions of this Agreement, the prevailing party will be entitled to reimbursement for reasonable attorneys' fees," a court should award attorney's fees to the victor.

I happen to generally like this provision. I think that it helps keep people honest by adding some risk to litigation. Still, there's no wrong answer on this. Many people dislike these provisions and I certainly can't say that they're wrong. It's a matter of taste.

There is one type of situation where I know I don't want an attorney's fee provision. That's where my client is a deep pocket and the other side is Joe Consumer or their company name is "We're Small and Judgment Proof, Inc."

In that situation, an attorney's fee provision in an agreement is a lose-lose for my client. If the other side prevails, my deep pocket client will pay their attorney's fees. If my client wins, he won't be able to collect from Joe Consumer or the little company anyway.

It's Not the Wild West

It's common for people to say that the Net is like the Wild West. It's the ultimate myth. Rather than being lawless, it's increasingly quite regulated.

Let's say that you have a website that hosted in Florida for a company based in France with a target audience throughout Europe. Further, let's imagine that somebody in Hungary makes a request for information from the Florida-hosted site. Then the Net routes the digital data through four states before its transatlantic voyage. It would be fair to say you have many jurisdictions that could make a claim to power to enforce their law over that website.

The answer to this daunting regulation scenario is to stay informed about the law and get good professional advice. Otherwise, your missteps could be costly.

Mark Grossman's "TechLaw" column appears in numerous publications. Mark Grossman has extensive experience as a speaker as well. If you would like him to speak before your group or corporate meeting, please call (305) 443-8180 for information.

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Disclaimer: The advice given in the TechLaw column should not be considered legal advice. This newsletter only provides general educational information. You must never rely upon the advice given here. Your individual situation may not fit the generalizations discussed. Only your attorney can evaluate your individual situation and give you advice.

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