Technology Law: Not Just for Lawyers


We've all heard the term "intellectual property" which has been around for a relatively long time. Unlike real property such as one's home, or personal property such as one's car, intellectual property is intangible and is the result of human thought, creativity and expression. Intellectual Property Law has historically been the name associated with laws governing human creations, such as the law of copyrights, trademarks and patents. In recent years, however, human creation of a technological nature and our new technological ways of doing business has resulted in the need for innovative ways to protect our businesses and ourselves beyond traditional applications of the law. Thus emerges the concept of a much broader area of the law, that is, Technology Law.

Technology Law is a relatively new term in our language -- so new that it means different things to different people. Sometimes it means computer-related law, sometimes communications law, and other times it means the law pertaining to inventions (patent law). To make a somewhat vague term seem more elusive, as technology changes, so does the scope of technology law.

For the purpose of this article, so that we may have a common shared meaning for what we are about to discuss, technology law means any and all laws that may have an effect on the way we conduct our businesses and lives where technology is involved. Now, that's a handful. It sounds like it could mean all laws -- period. Well, not exactly. It means the subsets of all areas of the law that apply to technology. For example, contract law applies to just about everything we do all of the time, but the subset of contract law pertaining to software license agreements is part of Technology Law. Likewise, trademarks belong to business law in general, but the understanding of what makes a mark generic or descriptive in the world of technology belongs to Technology Law.

If the laws regarding technology are so intertwined with all other laws, why put it in its own category?

The answer to that is the same reason why technology, itself, is put into its own category. As we all know, technology is becoming more and more integrated into all aspects of our lives and businesses. Still, we identify technological issues separately because technology requires unique skills and ways of looking at things that the fields it touches upon do not. The same is true with Technology Law. To be able to apply the law to technological endeavors requires a substantial knowledge of technology. It also requires an understanding of how law affects technology and how technology affects the law. Equally as important, it requires a commitment to keeping abreast of the rapid changes in technology and the equally rapid changes in the law affecting it.

What is a technology lawyer?

A technology lawyer is an attorney who has a substantial knowledge of technology, and chooses to concentrate his/her practice on the laws pertaining to it. However, one must be careful not to assume that concentration means certification. Only states can determine whether to grant such a distinction. In many states, such as Georgia, there is no program for lawyers to become certified as technology lawyers. In Georgia, technology lawyers simply choose to focus their practices on technology law, just as other attorneys might choose to focus on family or criminal law. However, an attorney may practice as a patent agent before the United States Patent and Trademark Office only if (s)he is certified by that office.

Even in states which do not grant special certification for technology lawyers, there are many competent attorneys who practice technology-related law. It is a decision of business owners whether they want to have, in addition to their general counsel, a technology lawyer advise them on technology-related matters.

What is the role of a technology lawyer?

A technology lawyer keeps abreast of relevant federal and state laws as well as court decisions that pertain to technology. (S)he answers questions about the law and researches how it applies to a particular situation. It is impossible for any one person to know everything about a particular topic, thus, ongoing research is essential in both the law and technology. Since the technology lawyer focuses on the law pertaining to technology, (s)he has a firm grasp on research tools and techniques relevant to technology issues.

Issues specific to technology are complex and require specific knowledge. Therefore, the technology lawyer works with the general counsel to protect business assets.

When does a general business need a technology lawyer?

Today, many businesses are dependent on technology to run their operations. That makes it essential for them to carefully investigate new and existing technologies before investing in them. No one can assure the success of any business endeavor, especially if based on new technologies. A technology lawyer can help minimize potential future losses and expenses by negotiating contracts and licensing agreements most favorable to the business.

When does a technology business need a technology lawyer?

If a business is a player in the technology arena, a technology lawyer will always be a critical asset. For example, if the main purpose of the business is to sell software products, it is essential that these products be protected by proper copyright and trademark protection and, in some cases, patent protection. A business also needs to have proper software license agreements with its customers as well as confidentiality and non-competition agreements with its partners, contractors and employees. These agreements must take into account the specific technologies they address and, therefore, an understanding of them is essential.

Will all your business assets be protected by obtaining a good lawyer?

A good lawyer is an excellent start in protecting your business assets, but (s)he is not the entire solution. This is because lawyers are not involved in the heart of your business on a moment to moment basis, even if you have an in-house legal staff. Legal issues may arise in the everyday course of business, but if they are not brought to the attention of an attorney, they may not get addressed until they emerge as a much larger problem.

Would you rely solely on an attorney to handle all your staffing concerns? Highly unlikely! You would probably hire an experienced human resources professional who understands both people and the laws pertaining to human resources. To handle taxes, many businesses rely on both a CPA and a tax attorney to comply with the laws. Likewise, a business should not rely entirely on an attorney to handle all technology law concerns.

If a good lawyer is not the total answer, how else can businesses protect their assets?
As the title of this article indicates, businesses can protect their assets by having a legally astute staff. The people that work the business day to day are the most likely to encounter situations which may later cause legal flare-ups. As is true with many business problems, the earlier they are discovered, the less expensive they are to fix. Surely, creating a legally astute staff is much less costly than litigation or losing your right to reap profits from your product.

How can a legally astute staff be achieved?

In order for the staff to play a major role in fending off potential legal problems, it needs to be trained both in the basics of the law and how to identify potential legal issues which may require the services of an attorney.

The first step in creating a legally astute staff is choosing the appropriate people to educate. While everyone seems to have an opinion about the law, not everyone is open to understanding how the law works or is able to function within its framework. For example, someone with very strong opinions about what the law should be would probably not be a very good candidate to perform this function. Similarly, someone with negative feelings toward attorneys may not be able to focus enough on the issues which are critical to your business.

Your legal team should consist of people from all areas of your organization which utilize or create technology. The team needs to consist of people whose primary job situates them, day to day, at the heart of the assets you are trying to protect. The team must be coordinated by someone who will have sufficient time to concentrate on making the efforts of the team work. If necessary, this should be a full-time position. The team coordinator will see to it that potential legal issues get resolved, both by addressing them with management and by communicating with an attorney.

A critical factor in the success of this team is the quality, amount and frequency of legal education it receives. If an in-house legal department exists, it may provide some of the training. Outside training companies can also be utilized to provide standard and customized courses. In addition, universities are increasingly offering courses on technology law which are geared for the businessperson.

Summary

Technology, and the laws governing it, are growing and changing rapidly. It is impossible for any one person to keep up with it. However, a business which has a legally astute staff and uses a team approach will be in much better position to deal with the opportunities and problems associated with it.