I like clients who are smart. I like clients who have done their homework. Sometimes, however, a client can know just enough about the law to be dangerous. The language of law is complicated. Bylaws are very different from an operating agreement. Independent contractors are very different from employees. You understand your business model but, until you communicate it to your attorney, she doesn’t. Leading her down the wrong path can cost you a lot of grief, time, and money.
One of the most frequent questions I get asked is how a client can protect the ideas in the new mobile app she is creating. The three most common ways of protecting IP are patents, copyrights, and trademarks. Unfortunately, none of these are effective in protecting a developer’s idea. A patent protects an idea but it is highly unlikely that the idea underlying a mobile app—no matter how clever—rises to the level of novelty required for patent protection. So, what about copyrights? Well, a copyright only protects the expression of the idea—not the idea itself. That means a copyright can protect your source code and maybe even the look and feel of your app but not the concept of the app itself. Finally, there are trademarks. Trademarks, however, only protect your brand—not your idea. Is there anything you can do? Kind of. You can protect your ideas before the mobile app is launched using the oft forgotten concept of trade secrets.
When I talk to business owners who are reluctant to store their customer information in the cloud, they most often tell me that they do not want to use the cloud because of the duty they owe to their customers to protect that data. Many of us are control freaks and we think that if we physically keep the files on our own laptops, on our own flash-drives, or on our own servers, we can better protect this data. This stands to reason because who will take more care with our customers’ data than we ourselves? This seems reasonable…until a tornado or a hurricane or a flood comes along.
If you are confused by legal mumbo jumbo, you certainly aren’t alone. Sometimes, the way attorneys write is confusing even to other lawyers. Even though there is a shift in the law toward writing contracts in more “human-friendly” ways, capitalized common words that aren’t usually capitalized, WORDS IN ALL CAPS, and specific words and phrases (known as terms of art) are there because of their legal significance. Some things cannot be de-legalesed. I hope after you read this, you will understand contracts a little bit better.