The first ten years of my practice saw a need to learn copyright law, while the second ten years required a working knowledge of patent and trademark law, and some privacy law, with a little international trade law thrown in for good measure (including U.S. export control laws and regulations). It was also the time when state and federal legislators were beginning to craft a specialized field of computer crime laws.

By the late 1980s there was a convergence of sorts between the computer and entertainment industries, primarily through videogames and CD-ROM titles. As a result, computer lawyers needed to learn about how the entertainment industry worked – again, primarily in the contracting area — but also with regard to trademarks, Hollywood guilds and unions (e.g., SAG, DGA) and right of publicity issues. It also required computer lawyers to learn a lot more about copyright and contract law in areas that had previously been limited to entertainment lawyers.

Since the 1990s we have seen the subject matter of computer law expand rapidly. We have had to learn telecommunications law, expand our knowledge of trademark law to deal with domain name issues, cope with the ever-expanding body of federal and state laws that deal with the financial laws and regulations underpinning e-commerce, privacy issues, cybercrimes, and a host of other fields that computer lawyers (now called IT lawyers) never thought they would need to deal with.

Now, cloud computing may require us to learn another body of law – admiralty law. Google has recently filed patent applications for ocean-going data centers that would be housed on large merchant ships and could be moored off-shore or sail blissfully in international waters – avoiding the problems arising from pesky local or national laws. These ships would generate their own power, provide their own cooling, have Internet connectivity (presumably from satellites or undersea cables) and generally be subject to no country’s laws. But underlying this concept is still the fact that we are dealing with ships. And ships are subject to both national and international laws – namely admiralty laws.

Dang. Just when I thought I was done learning new laws, I now find myself having to delve into the esoteric area of admiralty law. Ships containing data centers are no different than, and are subject to the same laws as, any other ship. Thus, they are subject to such things as piracy, salvage and seizure (arrest). Yet their cargoes may be infinitely more valuable than any previous ship that has ever plied international waters – the data of thousands or tens of thousands of corporations, millions of individuals, and numerous governments from around the world. How much would that cargo be worth if it fell into the hands of Somali pirates? And what if the assets of even one customer (or the ship owner itself) were subject to a seizure (arrest) order, and the entire ship was seized and the computers taken off the grid?

Far fetched? It was only a couple of months ago that the FBI, looking for assets of a company that had allegedly defraud the local telephone company, raided and seized all of the servers in several Dallas-based data centers – putting all of the data centers’ customers, not just the target of the seizure, out of business. Now multiply that by thousands of customers whose access to their data could be lost if the ship on which their servers and data are housed is arrested under existing admiralty law.

So to all of you IT lawyers representing clients that have or will be entering into cloud computing “solutions” to their data processing needs – start boning up on your admiralty law. It looks like you’re going to need it.

1. Tell me about the new Information Technology (IT) Law Summer Program in London?

The program will allow students to earn six units of course credit while enjoying five incredible weeks in London. Each student will choose two of four courses: Comparative Electronic Commerce Law, Comparative Information Privacy Law, International Cybercrimes or Drafting Information Technology Agreements. Classes will be held from 9-1, Monday through Thursday, which makes every weekend a three-day weekend. Classes will be supplemented by field trips, guest speakers and various social events.

2. When did you develop the idea for the IT Summer Law Program?

I have been interested in expanding the school’s offerings in international technology law since I joined the full-time faculty in 2003. There are not a lot of professors in Los Angeles, or even the United States, that have expertise in this area. Because of the growing importance of the European Union, and the enactment of new IT laws in the EU, it made sense to locate the program within the EU where we can hire professors knowledgeable in comparative US-EU IT laws.

3. Is this the first program of its kind?

Yes. There have been summer abroad programs that offer one or two courses in IT law, but this is the only program that focuses exclusively on international IT law. This gives students interested in practicing in this field a great opportunity to learn from professors who are internationally recognized educators in the field. It should give students participating in the program a distinct advantage over other students in getting a job in the IT sector.

4. Why London?

I actually looked at several other cities in Europe first. I had a list of characteristics I was looking for in a host city. None of the other cities had all of those characteristics; London did. In London you have first class housing and classroom facilities, a great transportation system, plenty of cultural, social and educational opportunities, easy access to other European destinations, a safe environment, and the ability to attract a world-class faculty.

London is, in my opinion, the most exciting city in the world. Spending five weeks in London is a once-in-a-lifetime opportunity. There is a dizzying array of things to do in London, from watching tennis stars at Wimbledon to enjoying plays, musicals and outdoor concerts just down the street from the school. We are literally only blocks away from the British Museum, the British Library and numerous historical sites. Stonehenge, Oxford, the Edinburgh Festival (and many other destinations) are easily accessible by train or bus. In addition, most European cities are no more than an hour or two away. For example, there is a train within walking distance of the dorm that will whisk you to downtown Paris in just two hours. You can have lunch overlooking the Eiffel Tower and be back in London in time for dinner, or spend the entire weekend in Paris or another wonderful destination.

5. What makes this such an exciting and timely program?

The Internet and electronic commerce are the fastest growing business sectors worldwide. Every company, whether considered “high tech” or otherwise, understands the importance of being “online.” As a result, there is an enormous demand for tech-savvy attorneys, even when there is a downturn in the economy. These classes are unique and will provide students with an international perspective on IT law that is simply not available elsewhere.

6. How and why was each participating faculty member selected for the program?

Having practiced in the international IT law field for almost 30 years, I have had the opportunity to travel extensively and get to know IT lawyers and academics worldwide. When I was planning this program I contacted dozens of recognized experts in the field and asked them whom they thought were the best educators in IT law in the U.S. and the UK. That search led me to each of the professors who will be teaching in the program. As shown by their biographies, they are all accomplished authors, speakers and teachers. It is a truly an amazing faculty.

7. What are some of the biggest issues in IT law and how will this program help prepare students interested in the field?

When a company establishes a website, it is instantly doing business globally. That means that the company is potentially subject to the laws of every country in which its website is accessible, including contract law, privacy law, and criminal law. It is not sufficient for a company’s lawyers to understand only the laws of the country in which that company is located. They must understand the potential impact of foreign laws on their client’s business, and the potential liability that client may face around the world. This program will provide students with that global perspective.

The four courses being offered and the instructors are:

Comparative Electronic Commerce Law and Regulations
Instructor: Dr. Julia Hornle, Queen Mary College of Law, University of London

Comparative Information Privacy Law and Regulations
Professor Ian Walden, Queen Mary College of Law, University of London

Drafting Information Technology Agreements
Professor Michael D. Scott, Southwestern Law School (me)

International Cybercrimes
Professor Susan Brenner, University of Dayton School of Law

The program will run June 21, 2009-July 24, 2009 and is open to any law student from an ABA-accredited law school in the United States, Canadian law students and other law students who can demonstrate English language proficiency. The brochure is available here.

If you are a law student, a law professor, or someone who knows a law student who might be interested in the program, please let them know about it. Due to limited classroom space, the program is limited to 48 students. Students will be admitted to the program on a rolling basis starting in January 2009, so early application is essential. The application is available here.

According to the facts, Rogers Communications, Inc., a Canadian cable company, entered into an agreement with Aliant, Inc. to string Rogers’ cable lines on telephone poles for an annual fee of $9.60 per year. Rogers intended to have a contract with a minimum five year term at a fixed rate with five year renewals. The renewal periods were to be subject to a one-year notice of cancellation.

The contract language said that the agreement “shall continue in force for a period of five years from the date it is made, and thereafter for successive five year terms, unless and until terminated by one year prior notice in writing by either party.”

Aliant gave notice of termination during the first five year period. Rogers objected and the parties ended up before the Canadian Radio-television and Telecommunications Commission (CRTC). Aliant, armed with a book on proper English grammar, argued that the second comma made the termination provision applicable to both the initial and the subsequent renewal terms, not just the renewal terms. The CRTC agreed. “Based on the rules of punctuation,” the comma in question “allows for the termination of the [contract] at any time, without cause, upon one-year’s written notice.”

Aliant has proposed a rate increase from $9.80 per pole per year to $28.05 per pole per year, costing Rogers more than $2.13 million more than expected.

Should the regulators have relied on an English grammar book to find the meaning to be unambiguous, or should they have looked behind the contract at the intent of the parties? Should parol evidence have been admitted to show the intent of the parties?

One contract drafting expert had this to say on the issue:

“The CRTC’s analysis seems pedantic, in that it would be unreasonable to assume that drafters grasp the implications of every comma. But as a way of resolving a dispute, consulting a few books on punctuation is certainly quicker than delving into the intent of the parties. * * *

“The drafter would have been better off rewriting the provision. Here’s my version: ‘The initial term of this agreement ends at midnight at the beginning of the fifth anniversary of the date of this agreement. The initial term (including any extensions in accordance with this section 12) will automatically be extended by consecutive five-year terms unless no later than one year before the beginning of any such extension either party notifies the other in writing that it does not wish to extend this agreement.’”

And the questions on any transactional attorney’s mind — Does the careless use of a comma constitute malpractice? And will the law firm that represented Rogers in this contract negotiation be representing Rogers again in the future?

A consistent litany is that law students do not know how to write. Unfortunately, colleges are moving away from having students write lots of essays — it takes too much time to grade them. Instead, schools are moving more toward short-answer and multiple choice exams, even in English courses. My son graduated from a very good university only a few years ago with a degree in English and even he lamented that there were so few classes in which he was asked to write a paper.

If students don’t learn how to write in college, should it be up to law schools to teach them how to write? And if not law schools, should it be up to law firms to teach them how to write?

The dearth of writing opportunities (other than final exams) in law schools is leading many schools to include drafting courses in their curriculum. The course I teach, for example, requires both in-class and take-home writing assignments each week. It is a pain in the neck to grade all of those assignments, but it is satisfying to see most of the students improving their writing throughout the course. By the time they get to their last writing project, they are comfortable writing contract clauses, and most of them do an extremely credible job in drafting a full agreement. Indeed, the work they do is often better than what I saw coming from young associates when I was in private practice.

But, of course, a single, three hour class over 14-weeks is not going to solve the writing problems facing law firms. And it is not going to prevent the problem presented in the Rogers case from arising again in a different context.

The fact is, lawyers are pretty good writers in general, but are not grammatical experts. It is unreasonable to a court or government agency to focus on an issue of punctuation that probably only a few lawyers would even realize is a problem.

Where there are two possible interpretations of a contract clause, no matter what some expert grammatician says, the trier of fact should look behind the text to determine the party’s intent. That is the only way to do justice.