Welcome back to Legal Geek. This week, we answer a listener question form Nic and also take a quick look at an interesting development in the war against patent trolls.
https://archive.org/details/LegalGeekEp45
Listener Nic wrote in on Twitter to ask about a little firestorm that popped up last week regarding a subscriber agreement contract that was proposed to go into effect for users of the Let's Encrypt service, a new free service for providing SSL/TLS digital certificates for use on your domain names and websites. This proposed Agreement required the user to make a number of warranties to be allowed to receive a Let's encrypt Certificate, including that you have not participated in a seizure of a domain name, and that you will not use your Certificates to attack, defraud, or intercept traffic of others.
Among other things, this laundry list of warranties was objectionable because read in a broad sense, even companies like Microsoft have previously participated in seizures of domain names. Put simply, it is not unusual to have a long list of representations and warranties between parties when formalizing a contract, and it's also not unusual for many of these to be regular or boilerplate copied from other similar agreements. However, in this case, a bit more careful drafting could have likely avoided the potential problems altogether.
Although a 2 minute segment is not long enough to dive into other deep nuances of this particular user agreement, it does reveal a couple of important life and business lessons you must understand:
First, you have to read and understand the entirety of any agreement or document you are signing. If you don't understand a contract, don't sign it until you discuss it with the other party or with legal counsel. It's a simple rule to keep yourself out of really bad situations. Second, every agreement is different and there really is no such thing as a form contract. If something in a form contract is not in accordance with what you want to agree to, then tell the party drafting the contract to change it. If they won't, then you either don't have the agreement you really wanted anyway, or the other side is just not worth dealing with.
Nic also asked about jurisdiction, but we will save the specifics on that for another day. Generally speaking, jurisdiction is the right a court has to have you forced to litigate there, and it essentially comes down to where you live and where you do business.
Thank you Nic for your question, and if you have a burning legal topic that you want to hear on this segment, please do like Nic did and send it to @BuckeyeFitzy on Twitter.
One final news item is worth a short mention as well, as we come into June and the end of the Supreme Court decision making for the year. A patent case regarding secondary or induced infringement was decided this week, and in the dissent, Justice Scalia referred to the term "patent troll" for the first time. This is interesting because the largely pejorative term has been avoided in the past by courts of the highest level, as it implies some negative assumptions about at least one of the parties in litigation.
But by directly identifying the issue by the common name and indicating that the courts have plenty of tools to deal with this problem, the Supreme Court has made an interesting move in essentially telling Congress to back down and let the judicial branch solve this problem. It's unclear if Congress will listen.
The Bottom Line: always understand what you sign, and keep an eye on the other highly interesting Supreme Court rulings to come out this month, including the most notable decision on gay marriage. You will certainly see something interesting one way or another!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Listener Nic wrote in on Twitter to ask about a little firestorm that popped up last week regarding a subscriber agreement contract that was proposed to go into effect for users of the Let's Encrypt service, a new free service for providing SSL/TLS digital certificates for use on your domain names and websites. This proposed Agreement required the user to make a number of warranties to be allowed to receive a Let's encrypt Certificate, including that you have not participated in a seizure of a domain name, and that you will not use your Certificates to attack, defraud, or intercept traffic of others.
Among other things, this laundry list of warranties was objectionable because read in a broad sense, even companies like Microsoft have previously participated in seizures of domain names. Put simply, it is not unusual to have a long list of representations and warranties between parties when formalizing a contract, and it's also not unusual for many of these to be regular or boilerplate copied from other similar agreements. However, in this case, a bit more careful drafting could have likely avoided the potential problems altogether.
Although a 2 minute segment is not long enough to dive into other deep nuances of this particular user agreement, it does reveal a couple of important life and business lessons you must understand:
First, you have to read and understand the entirety of any agreement or document you are signing. If you don't understand a contract, don't sign it until you discuss it with the other party or with legal counsel. It's a simple rule to keep yourself out of really bad situations. Second, every agreement is different and there really is no such thing as a form contract. If something in a form contract is not in accordance with what you want to agree to, then tell the party drafting the contract to change it. If they won't, then you either don't have the agreement you really wanted anyway, or the other side is just not worth dealing with.
Nic also asked about jurisdiction, but we will save the specifics on that for another day. Generally speaking, jurisdiction is the right a court has to have you forced to litigate there, and it essentially comes down to where you live and where you do business.
Thank you Nic for your question, and if you have a burning legal topic that you want to hear on this segment, please do like Nic did and send it to @BuckeyeFitzy on Twitter.
One final news item is worth a short mention as well, as we come into June and the end of the Supreme Court decision making for the year. A patent case regarding secondary or induced infringement was decided this week, and in the dissent, Justice Scalia referred to the term "patent troll" for the first time. This is interesting because the largely pejorative term has been avoided in the past by courts of the highest level, as it implies some negative assumptions about at least one of the parties in litigation.
But by directly identifying the issue by the common name and indicating that the courts have plenty of tools to deal with this problem, the Supreme Court has made an interesting move in essentially telling Congress to back down and let the judicial branch solve this problem. It's unclear if Congress will listen.
The Bottom Line: always understand what you sign, and keep an eye on the other highly interesting Supreme Court rulings to come out this month, including the most notable decision on gay marriage. You will certainly see something interesting one way or another!
----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
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