Millions of companies do business on the Internet. Of those millions, what percentage has a complete understanding of their online legal liabilities? 30% 20% 2%? Actually, most LAWYERS do not have a thorough understanding of their clients’ online legal liabilities. You end up with a client afraid to ask and a lawyer afraid to tell. They both play dumb, ignoring the elephant in the room. The problem is that the client is standing at the rear of the elephant. And instead of guiding the elephant away from the giant tub of bran muffins and out the door, the lawyer is donning the Haz-Mat suit and polishing his/her $300/hr gold-plated shovel.
No attorney knows everything about Internet law. The best you can hope for is a business lawyer or an intellectual property lawyer who knows enough about the law of e-commerce to make educated guesses. Would it be best to slip you out the back, force the elephant out the front, or aim him toward your competitor? You need knowledge and experience to make that decision.
The Internet opens new doors, gives people the chance to try things lawmakers never anticipated. Pretty soon you have new activities conflicting with old laws. Before you can get new, better laws, however, you have to wait for someone to get mad enough to sue and for a judge to enforce the old law on the new activity. Given the unfairness of the result, the case is appealed and the courts “reinterpret” the old law to address the new activity. It is typically not until this point when lawmakers begin the multi-year process of making new laws tailored the new activity.
Unfortunately, by the time they actually create “new” law, the Internet has opened more opportunities, and we return to square one. What you need is an attorney who not only has a firm understanding of the law as it presently exists, but who has followed the foregoing process so many times that the attorney has some insight. The best attorneys, the ones who really know the law related to the Internet, will not hesitate to change their advice as legal developments foreshadow emerging opportunities.
Constantly adjusting, rather than burying your head in the sand or merely crossing your fingers is the key to navigating the Laws of the Internet. What can you do to help your business lawyer help you through the maze of online legal issues? Spot issues before they become problems. A handy desk reference like the book Internet Laws Affecting Your Company is no substitute for legal advice. It may, however, give you enough information to know when an early conversation with your attorney, may stave off later costly litigation.