Introduction to Advocacy
The risks and liabilities that come with running a digital business are the proverbial elephant in the room that we all wish we could ignore but can’t afford to. While in the US we are able to see a glimmer of light at the end of the patent-troll tunnel, a recent Wired Magazine article on the subject reminds us that it’s not over quite yet: “The nation’s legal dockets are littered with patent cases challenging everything from mobile phone push notifications and podcasting to online payment methods and public Wi-Fi.”
Obama’s patent reforms may soon alleviate some of the risks (in the US at least) but that doesn’t mean any of us are off the hook. On any given day something your team is doing may be infringing on someone else’s copyright, trademark or patent. Something your team is doing may also cause damages. Because what we do on behalf of our clients is often associated with transactions, the stakes tend to be disproportionately high.
It may seem dramatic to say that our very existence as a business is on the line, but unfortunately there is chilling truth to that statement. And yet many chose to simply sign the contract that their clients provide, no doubt, for fear that they will lose the deal or sour the relationship. It often feels like Sophie’s choice: stuck between complying with the client’s legal demands or standing up for the worst case scenario and the future of our business, we often chose to abide by the clients’ demands. But is it worth it when the risk and liability you just agreed to is greater than the value of your business? What are you doing to offset those risks?
The truth is that everything is negotiable. And the golden rule of negotiation is to understand your bottom line and your clients’ bottom line to reach a fair deal. What should your bottom line be? What about your clients’ bottom line? Who should carry the burden or responsibility and how much?
In this section, we discuss the key points that should be negotiated as you start a relationship as well as various ways to structure the SOW to limit the risks and liabilities associated with your deliverable. You will also find important tips on billings and collections well ahead of potential litigation. This edition of Advocacy also provides insights into what your peers are doing to protect themselves and to educate their clients. Finally, we discuss the pitfalls of “intellectual lawyering” and what lawyers can do to serve digital businesses well.
Know your risks and liabilities, educate your teams, clients and partners, and make informed decisions. It’s just good business for all parties.