Computer Law and Legal Issues

Computer Law and Legal Issues

Question 1

1. The coming together of AB and YZ represents a merger of sorts. Mergers are governed by the law. A merger occurs when one firm takes up all the assets and liabilities of another company. The identities of the acquired firms are dissolved as they take up the identity of the acquiring company. Assets and liabilities taken by the acquiring company include both tangibles and intangibles. The databases and the websites owned by the merging companies are part of the assets that will automatically transfer to MN on merging of the two.

AB’s website and logos was designed by a student that was on a summer internship with the company. The lack of a formal contract between the developer and the company can be taken to mean that the developer was acting as an agent of the company where she was attached and that the web development was part of her work with the company for the period of her summer placement (Davison, 2003;12). Concerning YZ, their IT system and CV checking service was developed by an employee of the company. There is no mention of the existence of any contract between the YZ and the developer of the IT system. Therefore, it can be taken that the employee’s development was part of his job specification, of which he was properly rewarded for by the employee via salary payout.

Again, the fact that AB was in a long term relationship with a local university, which appointed one of its staff to support placement students at the company does not explicit allude to the existence of any formal contract. The fact that these three relationships between the companies and their IT developers failed to enter a legally binding contract precludes AB, YZ, and MN from any legal obligation. In other words, it can be assumed that both the merging companies met their obligation to their developers by offering summer placement opportunities to the students from the local university and payment of a salary to the developer at the YZ Company.

However, the MN Company must consider certain aspects that surround database and websites. These intellectual properties are protected by the Copyright, designs, and Patents Act, 1988. The Act protects the authors of original databases and websites. However, the data in the database is not protected by the Act. MN should be concerned with the Copyright, designs, and Patents Act, 1988 and ensure that it does not infringe it (Macmillan, 2007; 15). However, the protection of the databases by the Copyright, designs, and Patents Act, 1988 can be circumvented by MN’s IT team. This can be achieved by reselecting and rearranging the data from AB and YZ’s databases. The Copyright, designs, and Patents Act, 1988 does not prohibit the reselection and rearranging of data from databases. MN can therefore take advantage of this loophole, rearrange the date from AB and YZ’s databases, and use it in their new database.

The Copyright, designs, and Patents Act, 1988 seems to favour the developer of a website or database. The works done for the two companies, i.e. AB and YZ might have been commissioned works and since there is no mention of a contract, the ownership of patent on these databases remains with their original developers. Commissioned works refers to any work created on behalf of a company or an individual by a developer. The ruling in the case of Feist Publications, Inc. v. Rural Telephone Service Company, Inc. offers a legal direction for this case (Hall, & Ely, 2011; 335

The same argument can be applied on the logo design used by the AB Company and the CV checking system used by YZ Company are protected because they are intellectual property and are as thus, protected under the Copyright, designs, and Patents Act, 1988 . Having looked at the dictates of the law on this matter, now as a director in the new company, I would advise on a number of issues (Derclaye, 2008; 25). Firstly, the new company should maintain the relationship with the university and enter into a legally binding contract that will effectively transfer the ownership of the websites and databases from the developer to the new company at some considerable compensation. Additionally, the company can also consider buying the CV checking system from its original developer (Davison, 2003; 15).

Second, the merging will proceed seamlessly if MN appoints a contracted developer or IT specialist to do the merging of the system. The company can contract the students from the local university to do the merging because they are likely to be familiar with the system that was developed either by themselves or by their colleagues. Third, hiring a group of students will ensure that the job is completed within a good deadline and that both the cost and the integrity of the data will be checked. Fourth, MN must ensure to enter a contract with the appointed IT personnel and the contract should have a clause, which transfers the ownership of the new website and database to MN Company. This will in effect protect the company in the future (Davison, 2003; 16)…

Part B: Negotiation

One of the main things that must be agreed upon is the cost of the entire project. As a director, I will be kick-start the negotiation by laying out the requirements of the job at hand. Primarily, I will outline the requirements of the new system, which includes a need for the merging of the two IT systems. Secondly, I will outline the importance of the job being completed in a record time. Quality and security issues will also feature prominently in our initial negotiation (Ghauri, 2005; 248).

Concerning the time aspect of the project, I will enquire whether it is possible that the University allocates a number of IT students to work on the project during their summer attachment programs. Additionally, I will also request that the university appoints a supervisor or two who will work closely with the students to ensure that the merging of the systems proceed seamlessly (Torremans, 2007). In addition, it will be important to request that the lecturer mediate the process of acquiring the legal rights for the IT systems of the AB Company that were designed by students from the University.

Moreover, it will be important to lay down the expectation of the company on the new project. It will be important to point out to the lecturer that MN will expect the two systems previously owned by AB and YZ to be integrated to function as one seamless IT system. After setting out the expectations of the Company, I will then move to request that the Company and the University to enter into a formal agreement that will be established on a legally binding contract. This contract will outline the expectations of each party of the contract and will protect the interest of the contracting parties.

 

 

Bibliography

Davison, M. J. (2003). The legal protection of databases. Cambridge, UK, Cambridge University Press.

Derclaye, E. (2008). The legal protection of databases a comparative analysis. Cheltenham, UK, Edward Elgar. http://search.ebscohost.com/login.aspx?direct=true&scope=site&db=nlebk&db=nlabk&AN=218979

Ghauri, P. N. (2005). International business negotiations. Amsterdam [u.a.], Pergamon.

Hall, K. L., & Ely, J. W. (2011). The Oxford companion to the Supreme Court of the England and Wales. Oxford [etc.], Oxford University Press

Macmillan, F. (2007). New directions in Copyright, designs, and Patents Act, 1988 . Cheltenham, Edward Elgar.

Torremans, P. (2007). Copyright, designs, and Patents Act, 1988  a handbook of contemporary research. Cheltenham, UK: Edward Elgar.

 

 

 

 

Q2: Crime and the Court

The case at hand relates to an illegal access of information by an employee of one of the merging companies. The employee in question accessed information that she was not supposed to. Her clearance level did not allow her access to this level of information. In actual sense she hacked into the database and sent out emails to applicants that had submitted their details to the company’s CV checking system. This unauthorized access of clients’ information is considered a crime by the Police and Justice Act 0f 2006 (Gutwirth, 2011).

Accordingly, any intentional access of a database without proper authorization or access of a database with stolen credentials is considered illegal to the extent that the person accessing such information can be prosecuted for breaking the data protection law. Her access of the database is considered unlawful because it also contravenes the Privacy Act, which safeguards the data provided to the CV checking system by the clients. This act by the employee places both the company and the client in precarious positions. The client’s private information is accessed by someone that is not supposed to access it. Any injury caused to the client by this illegality can prove costly to the company. The employee’s purposeful and unauthorized access of the company’s database (Jay, & Hamilton, 2003; 17)

The Data Protection Act 1998 offers protection to a person’s computer identity. The Act ensures that login credentials are protected from fraudulent computer impersonations. A person’s computer identity is created and limited to his own use. The fact that the employee was able to access the clients’ CVs without using her own login credentials goes to show that there was either theft of computer identity or the owner of this identity gave out his login details. Whichever the case, the employee is still guilty for unauthorised access of sensitive information (Jay, & Hamilton, 2003; 18).

Electronic mail forgery and document forgery is covered by the Data Protection Act 1998. Many cases have been prosecuted in court because every e-mail sent bears an e-mail user’s identity available to every person that receives the email. There is a possibility that the employee used the computer owned by the person’s whose identity she stole. This would also serve as a source of evidence for the case. The email sent will always be left in the system and can be retracted and used in court for the prosecution of a data fraud that was perpetuated by the accused person(Salomon, 2010; 7).

Users of computer systems ought to protect themselves against computer identity theft. This can be achieved by the users having login credentials that are not easy to hack. Additionally, users of computer systems must ensure that they log out of all systems prior to shutting down their computers. Moreover, computer users should be advised against sharing their computer identities with unauthorised persons (Salomon, 2010; 7).

1. Expert Witness

An expert witness is a person called upon to give an expert opinion on a case in which they never witnessed firsthand. For one to qualify as an expert opinion, he or she must be an authority in the field that he or she is witnessing. Supposing the expertise and qualification of an expert witness is challenged in court by the defence counsel, the prosecutor must cross-examine the expert in a manner as to establish his or her credentials as an expertise. Based on the cross-examination, the trial judge will then make a ruling as to whether or not the witness qualifies as a trial witness or not (Clifford, 1998; 4).

Previously, expert witnesses enjoyed immunity from being sued for the expert evidence they give in court. However, this privilege has been abolished via a recent landmark ruling in the Supreme Court of England and Wales. In the case of Jones v. Kaney (2011), the Supreme Court upheld that there is no need for the continual justification of the principle of expert witness immunity. The previous expert immunity status meant that expert witnesses could not be sued based on the evidence given or reports adduced in court. However, the lifting of this immunity exposes the expert witnesses to possible liabilities under which they can be sued for tort or breach of contract and negligence.

As a matter of advice, I would advise the expert witness to base his testimony on her expertise and not on emotions. I would reiterate the fact that she is not supposed to be biased in favour of any party; her role in the case will be to give the expert opinion on the matter at hand. Baring in mind that the protection against liability has been lifted, I would advise the lecturer to ensure that she has an indemnity cover in place (Kuhne, 2003; 4). This would protect her in case a suit is filed against her. Finally yet importantly, I will advise her to have her retainer contract reading that her expert evidence and report should not be relied upon for any other purpose except for the preceding of the case at hand.

 

 

Bibliography

Clifford, R. C. (1998). Qualifying & attacking expert witnesses. Santa Ana, Calif, James Pub. Group.

Gutwirth, S. (2011). Computers, privacy and data protection: an element of choice. Dordrecht, The Netherlands, Springer.

Jay, R., & Hamilton, A. (2003). Data protection: law and practice. London, Sweet & Maxwell.

Kuhne, C. C. (2006). A litigator’s guide to expert witnesses. Chicago, Ill, ABA General Practice, Solo & Small Firm Section.

Salomon, D. (2010). Elements of computer security. London, Springer-Verlag.

 

 

Q3:

1. Protection of the Law on Inventions

The rights inventions determine the person that owns the patent in an invention. The owner of the patent excludes others from making, selling or using the invention for a period of 17 years. To analyse the case presented, it will be important to address the issues enumerated below: Inventions are covered by Copyright, Designs, and Patents Act, 1988.

1. Long term protection of the Software

In this case, there is no written agreement between the employer and the employee. However, the employee was hired for inventing the AI system and as thus, the ownership of the patent belongs with the employer. The employer can protect this invention by applying for its patent. This will ensure that he enjoys ownership of the invention for a period of up to 17 years (Blanco, 1994; 17).

1. Issues relating to discussion with bank and private Investor

Before approaching a bank or private investor for funding, I would ensure that the invention is patented. After that, I will have a feasibility study done on its viability in the market. This will help me persuade the potential financiers of the invention’s viability. It will also be useful to have a proposed budget for the roll out program for the actualization of the invention with data comparing capital investment against expected returns (Borking, 1985; 23).

• Issues relating to the database specialist who is working at a competitor

Patenting the invention will effectively take care of this issue. The former employee will effectively be prohibited from using or selling the invention to the rival company. If the employee goes against the provisions of the patent law, as the former employer I would move to court and sue him for damages (Hanneman, 1995; 14).

1. Issues that should be considered by recruitment company purchasing this software to match CVs and job descriptions.

A company purchasing this software that matches CVs and Job Descriptions should consider a number of factors prior to making a purchase. Firstly, they should consider the price of the program and ensure that it is within their means. Second, they should consider the compatibility of the program to the company’s IT infrastructure (Saks et al, 2010; 8). Third, the company should consider the effect that this system will have on employee morale and ensure that the employees are adequately trained to operate the program.

 

 

Bibliography

Blanco White, T. A. (1994). Patents for inventions and the protection of industrial designs. London, Stevens.

Borking, J. J. (1985). Third party protection of software and firmware: direct protection of zeros and ones. Amsterdam, North-Holland.

Hanneman, H. W. A. M. (1995). The patentability of computer software: an international guide to the protection of computer-related inventions. Deventer, Netherlands, Kluwer Law and Taxation Publishers.

Saks, A. M., Haccoun, R. R., Belcourt, M., & Belcourt, M. (2010). Managing performance through training and development. Toronto, Nelson Education.

 

 

 

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