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Ten Questions With… Howard Zaharoff (Part One)

For the next two posts we’ll be talking with Howard Zaharoff, attorney with the Waltham, Massachusetts office of the law firm Morse Barnes-Brown Pendleton. Howard and I are both members of the TechSandBox in Hopkinton, and when I learned that he is a part of MBBP’s intellectual property practice, has taught copyright law and has been practicing law for thirty years, I knew I wanted to get his legal perspective on copyrights and copy protection to share with readers of HoGo Blog Confidential and our conversational series, “Ten Questions With…”

Since Howard is a lawyer I want to make it clear that his answers are given in response to my questions only and are not to be construed as legal advice to any specific situation.

With that little caveat out of the way, let’s get right to it for Part One of Ten Questions With… Howard Zaharoff.

HoGo: What are the most common risks to intellectual property that smaller businesses, contractors and consultants overlook before starting their ventures or engaging with clients?

Howard Zaharoff: One common mistake is to assume that if you pay a consultant, its work product and associated intellectual property are automatically owned by you. In fact, IP generally remains the property of the creators, unless they are employees carrying out their jobs or there is a written assignment. As a result, many entrepreneurs commission software development, website creation, even logo design, pay the bill, and walk away owning only a vague and limited right to use the work product—not realizing that the new IP remains the property of the consultant.

Only properly written contracts can produce the results these entrepreneurs expect.

HoGo: What are the reasons, excuses or regrets you most often hear from your clients who find themselves fighting to protect their IP after failing to recognize those risks?

Howard Zaharoff: Not to toot the lawyerly horn, but it's amazing how many disputes arise because partners chose to economize and do business on a handshake ("we were old college friends!") or under self-generated memoranda of understanding ("I didn't think it was that complicated"). As lawyers like to say: Pay me now or pay me later.

Now is usually cheaper.

HoGo: Are larger businesses immune to these problems, or is it common for individual employees or departments to fall into the same traps, and why?

Howard Zaharoff: Larger businesses are usually better advised, so don't typically fall into that trap. Their more typical mistake is the opposite: proposing contract language that squeezes every last drop of IP ownership out of the (smaller) contractor. This may be good from a legal perspective, but causes resentment, protracted negotiations, and probably few greater rights, practically speaking, than a more balanced approach.

And, of course, such IP land grabs cause headaches for small contractors, who emerge from these projects with questionable title to the standard tools, code bases and processes they need to reuse to cost-effectively serve multiple clients.

HoGo: Have you noticed any detrimental cause/effect on copyright, copy protection, and IP protection due to the increased reliance on mobile technologies and the growth of "social sharing?"

Howard Zaharoff: Online and mobile file sharing, music swapping, and video lending have caused an explosion of copyright infringement that costs the creative community billions. And the more that people—young and old—exchange copyright-protected works electronically, the more that they assume this is permissible, which erodes the value and effectiveness of copyright and other intellectual property protection.

HoGo: There has been increased talk of reforming existing copyright law because of the Internet and the effects of digital piracy. What, in your view, is the primary issue that any such reform should address?

Howard Zaharoff: The concept that software, information, etc. "wants to be free" is common among open source advocates, academics, and many users. Realistically, the law will need to better accommodate technology: the ease of copying and transmitting copyright works means that, like it or not, they will be copied and distributed. Copyright law needs to come to terms, hopefully creatively, with this new reality – for example, expanded "compulsory licensing" enabled using micropayment technologies.

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