Being “Intellectual Property specialists” is not enough for being an “IT Lawyer”.
In the first place, a good IT lawyer must know the basics of software programming, although not necessarily being a programmer himself, know the rough difference between the several programming languages, the working of the networks, hacking techniques and so on. In a few words, it is of fundamental importance to be familiar with technology, some attitude that is not required in other fields of the legal practice.
For instance, in order to issue a good opinion on the legal protection of communication protocols, it is mandatory to be able to understand, at a technical level, the difference between the protocol, its software implementation and the technical documentation describing the protocol (or the specifications). Otherwise, the risk is to give to the client misleading or even erroneous suggestions on applicability of industrial property protections in such field.
Another good example, if one can offer his/her advice on issues pertaining the combination of proprietary and Free/Open Source software, it is indispensable to understand the technical methods by which this combination can happen (linking, shims, API’s, etc.), otherwise the risk is to worry the client about inexistent risks linked to the use of Free Software in proprietary products or, on the other end of the problem, to not be informing the client on the precise limits and obligations in such a case.
In the second place, a good IT lawyer must know the legal issues connected to the production, sale, distribution of hardware, software and services, as well as the dynamics of the IT/TLC sector. For instance, in order to draft a good IT product and services distribution agreement, it is necessary to be acquainted:
- with the law and international treaties that establish limits and restrictions on certain types of IT products (like the often disregarded Wassenaar Arrangement);
- with the limitation of warranty and the liability caps imposed by proprietary and Free Software licenses
- with data retention, data protection and infosecurity laws
- with technical instruments and means put in place in order to prevent unlawful exploitment of industrial property protected goods (or conversely the unvoluntary violation of third parties’)
- with standard policies and practices concerning warranty limitations, assistance, maintenance, etc.
Thirdly, a good IT lawyer must have a good handle on corporate dynamics and with the general understanding in the field, in order to be able to follow and to validate step-by-step an hardware/software project. The goal at the same time is to avoid posing useless obstacles or being inefficient interacting with the technical people and the project managers, and to timely spot sensitive points when still the time exist to remedy the development path. Therefore, to act proactively.
By way of example, an expert in the field is familiar with the notion that certain filesystems are covered by patents that make non advisable their use in embedded devices. If a legal expert is not in a position to early point out and react to that threat early in the project phase, suggesting alternatives based on the usual choices in the field, the client could suffer serious consequences if the problem arises when the product is out.