AS-IS: Ecommerce, Internet, Software & Technology Law and Contracts

Generally, when a small U.S. client tells me that they wish to expand abroad, I think to myself, "that's going to be complicated, time-consuming and expensive."

Recognizing the opportunities and challenges of globalization facing startups and other small businesses, the Wall Street Journal reports that consultants, such as High Street Partners of Annapolis, Maryland, now are advising them on how to expand abroad, such as dealing with tax issues, foreign employee benefits and local-currency transactions. 

I think that such consultants, especially for international finance and operations issues, would be a good complement to the advice of an international lawyer.

Source: Small Firms Hire Guides as They Head Abroad, by Phred Dvorak, The Wall Street Journal, November 5, 2007. 

Posted by Harry at 04:31 PM | Permalink

Posted by Harry at 10:38 PM | Permalink

User-generated content took the Internet by storm last year - even as Time Magazine's Person of the Year 2006.  This content includes postings on forums, photos on Flickr, videos on YouTube, and all sorts of media on MySpace and other social networking web sites.  It's a new outlet for millions of web users who want to mix and mash their media as a way of communicating with their friends and a vast anonymous web audience.

The rub is that much of the content is protected by copyright, and the users who post the content have no legal right to do so.  This is especially true of television shows, movies, and other popular content that is posted with little if any justification as a fair use.  Truly fair uses might include postings of short portions of works along with critical or political commentary.

Since 1998, the Digital Millennium Copyright Act (DMCA) has provided legal protection (a "safe harbor") to web hosts who offer user-generated content, but who agree to remove it (or "take it down") in response to a valid notice (a "take down notice") from the copyright owner. 

This placed the burden of enforcement on the copyright owners.  It also may have aided the development of web 2.0 services that offer user-generated content. 

I often recommend to my clients that they utilize the DMCA protections if their websites include user-generated content (such as forums or postings open to user comments).  Clients need to follow a simple registration procedure with the U.S. Copyright Office, and publicly describe a take down procedure in their website terms and conditions.

Viacom's recent lawsuit against Google concerning YouTube may place these DMCA protections at risk.

The question could extend much further than Google.  "If Viacom wins it really casts doubt on a number of businesses that rely on hosting information for users.... Google has basically been following the advice of the best lawyers in Silicon Valley.  If Viacom wins, that would call into doubt all of the business models that relied on the same kinds of legal advice," said Fred von Lohmann, attorney with the Electronic Freedom Foundation, in a recent interview with The San Jose Mercury News.

The Wall Street Journals calls this "the $1 Billion Question".  Yes, that and more.

Additional resources:

Viacom vs. Google: Test of key online law, by Elise Ackerman, The San Jose Mercury News, March 14, 2007.

Viacom v. Google Could Shape Digital Future: Lawsuit Hinges on 1998 Act Protecting Net Copyrights: Does YouTube Qualify?, by Kevein J. Delaney and Matthew Karnitschnig, March 14, 2007.

Whose Tube? Viacom Sues Google Over Video Clilps on Its Sharing Web Site, by Miguel Helft and Geraldine Fabrikant, The New York Times, March 14, 2007.

Posted by Harry at 07:56 AM | Permalink

For those who enjoy reading statutes (many lawyers, virtually no businesspeople): the expression "AS-IS" comes from Section 2316(3)(a) of the California Commercial Code, which states, "Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty."

Translation: if the seller says the product, or the software, or the website, is sold "AS-IS" then it's "BUYER BEWARE" for the buyer.

Mostly anyway.  Unless, as the statute says, "circumstances indicate otherwise."  Circumstances might indicate otherwise if the seller states something along the lines of: "This software is licensed AS-IS, but I guarantee that it will run on Windows Vista."

Posted by Harry at 06:13 PM | Permalink

Welcome to the AS-IS blog, where I plan to discuss ecommerce, internet, software and technology contracts and licenses, as well as the laws affecting internet and software companies, both large and small.  My focus is on California law and Silicon Valley.

 This blog is sponsored by the Boadwee Law Office.  Please visit that site to learn more about me (attorney Harry Boadwee).

Posted by Harry at 10:53 PM | Permalink