Book Review: The Legal Guide to Web and Software Development – By Stephen Fishman

It is essential for everyone of us to learn about the law and our rights and obligations when we deal in any sort of business. The Legal Guide to Web & Software Development aims to provide those involved in the web and software development business with the fundamentals of intellectual property, employment and sub-contracting issues, and contracts relating to web and software development.

The 500+ pages book is divided into two sections, the first covers the general legal fundamentals covering intellectual property and employment issues, and the second section provides a detailed explanation of a number of contracts relating to the web and software development business.

The book is good in the way it generally uses simple terms to explain the legal aspects of copyright, trademarks, patents, trade secret, database rights, and the impact of consultancy/employment contracts on all of these issues. The book also nicely provides practical examples throughout the first section to illustrate the legal concepts and makes suggestions on how to establish an effective trade secret protection program.

The second section of the book offers a detailed explanation in a clause-by-clause manner on how to draft a number of development related contracts, namely: an ‘employment agreement’, a ‘consultancy agreement’, a ‘software and website license’, a ‘website development agreement’, and a ‘software development agreement’. The book is worth the purchase just for the second half of the book as it explains all the essential clauses of the specific contracts it covers and the boilerplate clauses found in the majority of contracts such as the confidentiality clause, the dispute settlement clause, the termination clause, and others.

A section worth highlighting in the book is the chapter on licensing and opensouce licensing, a topic which I had a general idea about but was not familiar with the specifics of. The book nicely explained the differences between major opensource licensing and the issues to be considered when developing and using an opensource application.

The book comes with a CD containing all the forms and contracts discussed in RTF format. These are poorly formatted and not as usable as a Doc file, but they would just do the job.

I thought that the book was generally very good, it should be of help to anyone involved in the web and software development. The author claims that it is directed towards developers and clients at the same time, but I thought that the contracts were extremely worded to the benefit of the developer rather the client, which does not always happen in practice, because the developer does not always have enough bargaining to dictate the terms to suit his own needs and would have to take the terms written by the client. The book does at many times provide alternatives for clauses with varying levels of favouring to the developer, but it does not talk at all about extreme clauses that would be in favour of the client and which might be detrimental to the developer, and those are important to the developer because he might not always have the choice but to take them.

Another issue, which is not major but really annoyed me was the fact that the author Stephen Fishman really still thinks that website owners need to have a permission to link to another website. The book does not explain the difference between hot-linking, deep-linking, and linking to a website’s homepage. He also wrongly suggest that linking could constitute a trademark infringement when in most cases it does not as the mere usage of a trademark name to identify the product in a manner that does not mislead to its source is acceptable. I believe that it is legal to link to any publicly available web page on the internet without the need to acquire a license from the owner. Hot-linking and framing is a much more complicated issue that was unfortunately not covered in this book.

Regardless of the few criticisms of the book, and taking into consideration the fact that this is one of the very few books on the topic, the Legal Guide to Web & Software Development is still an essential read for web and software developers looking for a straight forward legal guide that covers all the legal aspects of their craft. It offers an easy to understand explanation of intellectual property and provides an explanation of a number of widely used contracts in the business of web and software development.