If you live in Florida, you already know it is a great place to live because of our beautiful natural resources, world-class attractions, and thriving tech community. What you may not know is that it is also a good place to form your software company.
It has become commonplace in the technology entrepreneurial community to classify most, if not all, workers as independent contractors. Many people think that if the arrangement is agreeable to both the business and the worker the classification is valid. However, whether a worker is an independent contractor is based on law—you cannot change that by an agreement in a contract. This post explains the factors that are used to determine whether a worker can be classified as an independent contract, how a misclassification can come to light, and what happens to your business if it is discovered your workers are misclassified as independent contractors.
Whether you are an independent contractor or a software development company, you should have a software development agreement with any customer for whom you are developing custom software. There are specific don’ts you should include to make sure your IP is protected and your liability is limited.
If you are forming an LLC with your bestie—and you want your bestie to stay your bestie—you need an operating agreement. People tend to think of legal agreements as an indication that they don’t trust their business partners. That really isn’t the point of an operating agreement. You probably think you’re on the same page. How do you know for sure? An operating agreement. How are you going to handle differences in opinion later on? You create strategies to break ties…in your operating agreement. How do you protect yourself from default LLC provisions that run counter to the way you want your business to operate? Again, an operating agreement.
Throughout law school, I heard my classmates say they chose to become attorneys because they don’t like (or aren’t good at) math or science. I find that interesting because writing a contract (at least, a good one) requires the same thought processes, analysis, and structure as writing software code.
One of the fundamental principles of software design is abstraction. As much as possible, a good developer tries to find commonly used code and abstract it out to prevent repetition. In turn, this abstraction leads to software with fewer errors that is also much easier to maintain. Good attorneys also use this abstraction principle to create robust contracts.
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.
You got that, right? When you are using a mobile app, you are “signing” a contract with the app provider.
The Tech Law Firm, PLLC
Catalyst location (mailing address)
One South Orange Ave., Suite 502
Orlando, FL 32801
407-392-0323 ext. 101
101 South Garland Ave., Suite 108
Orlando, FL 32801
407-392-0323 ext. 102