By Rachel Burnett and Paul Klinger
Review: Rob Neil FBCS CITP. ITNOW, May 2006
Score: 7/10
If you were to sum up this book in one word, it would be ‘comprehensive’. Starting with a useful introduction to relevant law and the basic principles of contract negotiation, it quickly moves on to IT specifics, such as software licensing, escrow services, DR, and maintenance and support agreements.
It is also quite readable – no mean feat by the authors considering the subject matter.
Each subject area is more than adequately supported by example contract clauses, each backed up with thorough explanation. In addition, there are complete agreements included for every topic covered, both in printed form and, usefully, on an accompanying CD.
I can see this book being valuable to two distinct groups: the generalist lawyer who needs authoritative information on particular aspects of contracting in the IT environment and the IT manager who requires an understanding of the legal framework that the profession operates within. In either case, this volume is an invaluable resource.
It is an expensive purchase, so will not appear on everyone’s bookshelves but if you require a thorough grounding in the black arts of contracting for IT goods or services, it may be worth the financial outlay.
Review: Anna Feros, European Intellectual Property Review 2005
Burnett and Klinger’s Drafting and Negotiating Computer Contracts is a very handy, extremely thoroughly thought-through text on (as the label says) drafting and negotiating computer contracts. Paul Klinger started professional life as a systems analyst and then went on to study law and after qualification, worked as in-house counsel for an IT company. He then went on to establish a niche IT legal practice. Similarly, Rachel Burnett also started life as IT professional but then studied law and ended up working at Klinger’s law firm. Both have since moved on, with Burnett opening her own boutique IT law practice and Klinger now acting as freelance legal consultant and non-executive director on the boards of several IT companies. It is important to highlight the authors’ backgrounds as the very practical training and working background of these two lawyers bring with them a different flavour to their writing and choice of emphasis which is evident in this text. The text carefully (and as simply as possible) explains the many legal instruments and concepts that affect IT contracting. For example, although areas such as contract law are obviously covered, there is also a thorough (although still short-form) explanation of consumer protection law concepts which affect all commercial dealings. The authors have gone to great pains ambitiously to cover as much as possible of all relevant law but have managed to do so in a manner which does not “overload” the reader with lengthy legal concepts and jargon. This is a credit to their ability to present explanations in an easily understandable short-form manner without losing the essence and importance of their subject-matter.
The authors state that the “focus of our book remains as before: to offer a perspective to drafting and negotiating computer and other IT contracts which is practical rather than narrowly academic, drawing on our own experience in the industry”. Since the first edition in 1994, the authors have added new chapters on ASPs, website development and e-commerce arrangements as this has continued to increase in importance as a means of financing hardware acquisition. They have also substantially revised the content “to take into account the commercial and legal developments over the last decade” as well as “responded to the many requests we have received to provide precedent formats by including with this edition a CD containing examples of the contracts reviewed”.
Drafting and Negotiating Computer Contracts is detailed and obviously extremely well researched, with examples in the form of real examples of IT contracts and cases used at every turn to demonstrate the aim of the discussion. The authors also go to great lengths to point out that in each type of contract, the perspectives of the supplier and customer will obviously differ and how that difference may translate into provisions in a contract. This is very important as all too often texts and precedents contracts do not do this in any detail and to a person not long experienced in this industry (whether as an IT professional or IT lawyer) this quickly makes the difference to how useful the first draft of a contract will be. A first draft that has already considered the perspectives of the parties (and particularly, the party providing the instructions) will require much less redrafting both internally and between the parties and thus speed up the negotiation process.
In order to help readers navigate through this text, it has a contents outline, glossary of terms, table of statutes and statutory instruments and table of cases. There is also a quite detailed index. Each chapter is broken down into numbered sections with distinct headings and subheadings, which breaks down the text into manageable portions. There is also good use of endnotes to add supplemental information although for ease of reading, footnotes can sometimes be better. There are 23 chapters in this text in addition to 200 pages of precedents and a CD-Rom.
Chapter 1 provides the introduction to the background, objectives and structure of the text. Chapter 2 discusses the principles of contract negotiation, which is extremely important as a contract is a reflection of the negotiation skills of the parties to that contract. This chapter discusses how to prepare for and approach negotiation both internally and with the other party and how to tackle standard form contracts and government purchasing regimes. Chapter 3 concentrates on the basic features of the English legal system, its interrelation with the EU and its differences to other legal systems. In addition, it discusses international conventions such as UNCITRAL, in relation to commercial contracts, the international intellectual property legal regime and its local effect, as well as tackling competition law in a manner which is credit to the authors’ ability to explain difficult concepts in an understandable manner. English contractual law is covered in Ch.4, which is lengthy (as expected) but necessary before continuing on to discuss the more specialised IT contracts in later chapters. Chapter 5 logically progresses to discussing the general construction of IT contracts and is an excellent introduction to the following specific chapters, complete with a section summarising how to use the following chapters the most effectively. Chapter 6 looks at standard “housekeeping” provisions or boilerplate clauses. Chapter 7 discusses clauses which are generally common to all IT contracts. Chapters 8 to 21 then discuss a specific type of IT agreement for each chapter. The types of contracts covered in these chapters are non-disclosure, computer product supply, leasing, distribution and reseller arrangements, software licences, source code escrow, maintenance and support, consultancy, software development, outsourcing services, ASPs, website development and support, e-commerce and disaster recovery. These chapters are all well written and any criticisms the reviewer had were minor (for example, it would be useful for cross-referencing without the precedent clauses if clause numbering were the same for those clauses extracted and discussed in the text.). The precedents are useful examples and provide good starting points but like any precedents need to be tailored for style and to suit specific circumstances, but by far and away the most useful part of this text is the discussion in each of the chapters.
The authors’ intention in writing this text was to address it to the IT industry and its users. The authors also hope “that this book will be useful for lawyers, accountants, management consultants and other advisers servicing this significant sector of the economy”. The reviewer believes that all the authors’ aims will be achieved and, as a lawyer, recommends this text to other IT lawyers, particularly those starting out in the field, as it will aid their professional development immensely and help them develop and maintain a practical commercial focus to their advice and drafting for which their clients will be eternally grateful.
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