Why technology law is probably the most attractive area of practice for lawyers and techies of tomorrow
Technology is changing the world. The largest companies in the world today are tech companies. Naturally, opportunities for lawyers and other professionals are drastically increasing in this sector. Cash-flush technology companies offer better packages, perks and work environment. Compared to stagnant manufacturing or services industry, technology companies are both better clients and better employers.
Mix with that the thrill of working on things that are changing the world before our eyes, from Artificial Intelligence to Smart Contracts. Who does not want to work on these things? Cryptocurrencies have created hundreds of new billionaires in the last three years. Fortunes were made and lost on crypto exchanges, and hundreds of millions are still getting stolen from crypto wallets. The government in every country is grappling with issues and policies to deal with these new generation businesses. New and exciting laws and policies are being created every day around the world that keep tech lawyers busy. From net neutrality to data protection, technology law is undoubtedly the most happening legal sector today, and every lawyer dreams of being a part of this action.
With the technological advancement, laws and contracts have become more complicated. Sometimes you not only need to know the prevalent laws in India but comply with laws across the globe. This is also happening because technology businesses easily enter new geographies, sometimes without even having to set up offices in another country. As a tech lawyer, it is often not enough to know the laws of the country where you operate, but understand the global legal framework around issues like data protection, cloud contracts, cross-border tech-enabled crime, technology contracts, content restrictions, international transactions, breach of cyber security and emerging government policies.
Many of the exciting startups are technology-based and massively rely on technological advancements. Every known industry like media and press, telecom, FMCG, food, retail, farming, defence, education and anything else you can imagine is being or is about to be disrupted by technology companies. Companies which fail to embrace new technologies are being assigned to the dustbin, as seen from the epic downfalls of companies like Kodak and Xerox which used to be mighty empires that fell due to lack of focus on technology.
In the times where everything is going digital, there are innumerable laws and regulations that govern everything from operations, contracts, and transactions. Companies are increasingly in desperate need of professionals who understand these laws and regulations, and even the government policies behind them, so that they can protect their significant business interests and extract maximum advantage in the marketplace.
Amidst the data privacy issues, cyber threats, increasing fintech and transparencies, you need to be able to keep up with technology and laws. You need to be one step ahead of the curve.
Should I invest time, money and energy into learning technology law?
If you are a law student or a young lawyer looking for an area to specialise in, technology law is probably a very wise choice. If you are a techie, technology manager or founder who is thinking of investing in understanding the rules that define this game, then you are making a very wise choice too. This investment is likely to pay very rich dividends over the years in your life as the technology frontier is pushed further and more value is generated by the tech industry to support a global population of over 7 billion people and growing.
However, how can you develop a deep understanding of technology laws, contracts, regulations and fast developing government policies? Reading the sections and case laws is grossly inadequate, and anyway, that’s something you could google at a moments notice.
So what should you learn to become an outstanding technology lawyer or a shrewd strategist as a techie or founder?
You need to know how to identify the possible vulnerabilities in your client’s business model and dealings. You need to be able to strategize and structure deals to create safeguards against those vulnerabilities. You also need to be able to foresee the potential threats and risks. You’ll need to draft technology contracts like Software License and Assignment Agreements, IT Services Agreements, Cloud Services Agreement, Content Licensing Agreements, terms and conditions for platforms, e-commerce vendor agreements etc. You need to be able to review the contracts and negotiate the best deal for your clients. You need to be aware of regulations developing around the world, and predict how things may shape up in India and other key markets of your company. You need to know what to ask and what to give up during a negotiation. You need to know to learn about risk management and introduce best practices in your organisation or client’s business.
You need to develop astute thinking and understanding around technology and law. Rather than knowing sections, you need to understand how business is done, what are various interests at loggerheads, and how the law can be used to win the day or protect your skin.
What are the essential skills for a technology lawyer?
While the skill set for specialised lawyers may vary based on their industry, there remain certain essentials which cannot be amiss in a technology lawyer.
For the employers, it is cost-efficient to hire a technology lawyer who is already competent in technology, rather than training them on the job. The specialised skill sets are much easier to acquire than it seems. If you are aiming for a good package and role, it is far better to acquire these skills before you start working and in the 2nd best case, you must work on them while you are working as a tech lawyer to progress faster in career.
You need the practical skills like technology related contract drafting, risk assessment, risk management, strategising, policy-making and implementation, negotiation and last but not the least, ability to speak in the language of your clients i.e. techies! If you can’t explain complex laws to them simply in their language, you will find it difficult to progress in tech law.
Knowledge of emerging technologies
Although a technical degree is not a requirement, there needs to familiarity with the technological advancements. You don’t need to be a techie to be a technology lawyer, but you must be able to understand the mechanisms, parlance and terminology of the technology world.
For a technology lawyer these terms hold much significant value when they converge with law. For instance, in a clarification to Section 31D of the Copyright Act, 1957, Department of Industrial Policy and Promotion (DIPP) clarified that the term ‘broadcasting’ shall include internet broadcasting as well, it created confusion as to which companies fall under the purview of ‘internet companies’. This raised questions like whether streaming applications like Gaana and Saavn are essentially internet-enabled companies or internet companies? A technology lawyer would need to understand the mechanism of streaming music as well as its definition in the light of internet company.
Also, these days many a law firms and companies want to create a virtual version of their organisation through cloud computing and knowledge management systems. There are even Decentralized Automated Organizations (DAO) which would be implemented across many sectors. There are areas like e-discovery, automated documentation processes, usage of artificial intelligence to make routine decisions. These process altogether save valuable time and thereby costs for the organisation. The technology lawyers competent in such operations are high in demand in companies that deal with these technologies. Apart from knowing the law, you must understand what the technology does and sometimes even how it does whatever it does.
A tech lawyer need to stay in touch with emerging areas of technology because very often that is where legal and policy issues and disputes arise. Legal and policy issues are arising in India right now in domains such as drone licensing and civilian use of drones, cryptocurrency, big data collection and storage, space and defence technology, cloud computing, emerging e-commerce practices, payment gateway debacles, cyber security, net neutrality, biotechnology etc. If you do not understand the underlying technology, how things are being done and where it is all headed, practicing technology law is very difficult only by knowing legal provisions.
Technology Contract Drafting & Negotiation
Contract drafting is one of the most quintessential skills for any lawyer. The art of drafting contracts which safeguard the client’s interests and provides for a more comprehensive layout of dealings is an inherent part of the job for lawyers.
For a technology lawyer, this skill has to be taken a step further. These lawyers need to know about contracts which are more relevant to tech companies on a daily basis such as Standard Distributor Licensing Agreement, Cloud Computing Agreement, Outsourcing Agreement, Software Licensing Agreement, etc. Even with respect to more commonplace agreements such as NDAs, non-compete agreements, employment agreements, investment agreements, vendor agreements etc., you need to learn to draft improvised versions that are more suited to technology industry.
There are things you need to do beyond obvious drafting and negotiation work too, which is strategizing deals. Imagine, what would happen if your counter party finds out that you are using someone else’s patented technology in the middle of negotiating a deal. There cannot be any worse timing than this to lose leverage in a negotiation. To avert any infringement and thereby costs to the company, you need to apply for necessary permissions and licensing, and get the paperwork right in time!
The technology lawyers are present throughout the way, right from the launch of the product, to getting the necessary licenses and permissions, to managing the intellectual property portfolio and disputes arising out various contracts. They need to negotiate and draft the best possible deal for their companies.
If you do not know how certain contracts are drafted or best practices in the industry, it will be a significant disadvantage.
Managing the IP Portfolio
The primary product of any technology-based company or client is their intellectual property.
There are product companies and services companies. Product companies develop technology which is usually their core product, and must protect their proprietary technology from getting copied. Sometimes this means getting patent protection, and at other times simply ensuring that non-patentable proprietary technology is not leaked to competitors or exploited by ex-employees. Think of the ‘slide to unlock’ technology on your smartphones. Apple and Samsung got into the smartphones patent wars by filing about 50 lawsuits for various patents, trademarks infringement, around the world and claiming billions of dollars between them! Service companies on the other hand, develop technology for other companies. The terms of the services contract define whether they retain any rights on the technology developed by them or not.
The noteworthy thing about technology is that more than one party could be working on the same technology, at the same time. If the intellectual property if your client is not adequately protected or it overlaps with existing technology, the lawyers have to ensure that the damage is mitigated while protecting their client’s interests.
As a technology lawyer, you have to manage the IP portfolio more diligently than your counterparts as the existence of your company may depend on preventing others from copying or replicating the technology! In media related technology companies, the IP battle may be to stop your content being pirated on the world wide web. To do this successfully over a period of time, tech lawyers have to introduce company-wide policies and implement them in time. They have to educate the various departments and management regarding the risks and help them mitigate the foreseeable risks and costs.
They need to apply for the necessary trademark, patents, copyright registrations and enter into trade secret and non disclosure agreements where necessary. In case of an overlap of technology, it has to be mitigated by procuring third-party licenses, or finding flaws in the oppositions filed against them. The IP portfolio management is one of the critical functions of a technology lawyer.
Risk Assessment & Management
A good lawyer has to have forethought about possible risks. There is no point in digging up a well when there is fire; it has to be done beforehand. There are risks in every business across industries. However, a lawyer has to ensure that they don’t come back to bite you.
From this perspective, it is important to know the history of an industry, and even correlate what happened in other tech industries and be able to predict the way things may shape up for your client. One has to have a grasp of evolving government policies, judicial developments as well be keyed into technological developments.
Sometimes risk management is a simple matter of doing a prior art search, and at other times it is all about advising the CEO about where the next regulatory roadblock may come from.
Policy Making & Implementation
But policy-making itself doesn’t ensure its effective implementation. Even the best of policies, if improperly executed lead to a bigger mess. Just look at Aadhar unique id. In spite of having the government, technology and plan on their side, the callous manner of implementation of said policy led to multiple lawsuits!
Litigation and dispute resolution in tech
Tech litigation is on the rise along with global growth of tech industry, as well as increasing complexity and regulation of this sector in every corner of the planet. From IP disputes to co-founder conflicts, from data theft to class action suits for malpractice, tech litigation is never as hot as it is now. We can only predict that this will continue to increase. Specialized tech litigators stand to make the most money as high profile and high stake tech battles reach arbitration chambers and courtrooms with increasing frequency.
The biggest challenge for the technology lawyers in litigation, is usually explaining the technology to the judges or arbitrators with no technology background. The skill of communicating the dense and complex technical manner in the simplest manner in order to convince the judges is much desired. It requires highly strategic thinking and personal grasp of the subject matter.
Imagine explaining complex algorithms that determine logistical efficiency in food delivery by drones, robots built using nanotechnology or cryptocurrency regulations to a judge. This is the challenging task for tech litigators often get paid in millions.
One thing is sure beyond any doubt; there are new grounds to break for technology lawyers with the passage of time. We now have a lot of technology that used to be unthinkable a decade back. Who knows what kind technology will be imagined and realised next? We can, however, not imagine a technology space without tech lawyers making the wheels roll.
So buckle up technology lawyers of the future! This is a very exciting and profitable time to become a tech lawyer.
This article is written by Ramanuj Mukherjee, Co-Founder and CEO at LawSikho.