LEGAL CONSIDERATIONS FOR INFORMATION SYSTEMS MANAGERS - DISASTER RECOVERY

• The software you use
  • Do you have the correct number of users as per your licensing agreement?
  • Is all software on your system licensed? Employers may be liable if they allow employees to use unlicensed software on the employer's information systems.
  • Do you conduct regular software audits to detect unlicensed software?
  • Do you store your software in a secure manner if this is required by your licensing agreement?
  • How easy is it for third parties to gain access to and copy the licensed software?
  • Escrow for source code to ensure the source code is available for continued use and development if the developer goes into liquidation or if the business is dissolved.
• The software you develop
  • Who owns the intellectual property - you or your contractors?
  • What are the terms of your licence to use the software if the intellectual property is not yours?
    • exclusive or non-exclusive licence
    • distribution and on-sell opportunities
    • intellectual property indemnity from the software developer
  • Considerations of ownership of the materials which you supply to customers.
    • ie. Library Code; Repositories
  • Intellectual property infringement

• Misleading and Deceptive Conduct
• Sponsorship

• The software you use
  • Limitation of Liability clauses
    • Too broad?
    • Trade Practices Act
  • Reasonably foreseeable loss and damage
  • Negligence
  • Record all incidents of errors, time spent and train staff in error reporting and rectification procedures
  • Know your reporting obligations under your warranties and performance guarantees
  • Consider if there was a fatal error in the software.
  • Consider recovery options
• The software you develop
  • As above
  • Maintain detailed notes of all complaints, including:
    • the time and date of the fault
    • the symptoms of the fault
    • has the operation worked before? If so, what has changed?
    • the operating system including release levels and update levels
    • a general description of the fault, including what happened before, during and after the fault
    • the program(s) running at the time of the fault (including release and update levels)

• E-mail
  • Courts will admit e-mail as evidence.
    • Employees need to be briefed as to what is acceptable use and the consequences of a breach of the e-mail policy
    • Contact by e-mail has been found to determine the legal jurisdiction for contractual disputes. E-mail needs to be considered to be the same as formal written correspondence in business transactions.
  • Privacy issues
  • Defamation
    • Dafamatory remarks posted to a bulletin board etc. can have legal ramifications, there should be a policy in place, which is explained to all employees, regarding the content of e-mail messages.

• Every employee and contractor should be requested to assign intellectual property and to sign a confidential information deed whenever possible.
  • An assignment of copyright is not valid unless in writing
  • These agreements will protect the employer when an employee or contractor leaves, possibly to work for a competitor by ensuring that intellectual property cannot to taken or disclosed to your competitors.

• Points to consider:
  • Assignment of copyright
  • Intellectual Property indemnity
  • The terms of any software licence

STEVE WHITE
WHITE SW COMPUTER LAW
NOVEMBER 1997

www.computerlaw.com.au © White SW Computer Law 1997 This article is a guide only and should not be used as a substitute for proper legal advice, readers should make their own enquiries and seek appropriate legal advice.