Why things you think are private, aren't.

Time Commitment: 7 minutes if you try to count the commas while you read. 5 minutes otherwise.

The post is about avoiding even the appearance of wrongdoing, not about doing the wrong thing without getting caught. Seriously, be good guys! :)

I recently had an exchange with a friend about using the content from a third-party site to populate our own app we’re working on. I’m going to leave the copyright implications aside for now and just talk about the conversation itself.

It went something like this:

Him: Our site is empty right now, and their site is full of the data we need. We should consider partnering with them. I already wrote a script that can parse their data to use for now. “I’m guessing this is completely illegal, but I kind of don’t give a s@#*.” (actual quote)

Me: I doubt we can use any of that data.

Him: How would they ever know?

Let me first assure you that my friend on the whole does care about being a good guy. And even in this situation, his language belies a general respect for others and their rights, and in this case the data probably doesn’t carry much, if any, copyright protection anyway. Still, we eventually agreed that it was best not to use the third-party data, and decided instead to populate our site the old fashioned way (inputing seed data ourselves and incentivizing users to help). But let’s say hypothetically the owner of that other site saw our content, suspected we did scrape it from their site, and sued. What would happen then?

Without getting too bogged down in civil procedure (because even most lawyers hate it), if the suit were to survive some preliminary steps, the discovery phase would begin, where each party can request and compel the other party and relevant third parties to share their documents, records, and all sorts of evidence they probably don’t want to give, including access to computer files and emails. It’s a hassle, and it feels intrusive (because it is). In our case, we would probably be compelled to give them a copy of this conversation, which happened over email (along with this post too, now that I think about it). We wouldn’t look good in the eyes of a judge, and it could make the case more likely to go trial despite us not really doing anything wrong. We’d probably end up having to settle, not because we’re liable, but because it would probably be cheaper than defending the suit.

The takeaway

Whenever you are communicating, assume whatever you say will be discovered by any interested party. The assumption might not change what you say one bit, or may even inspire you to embed easter eggs that seem like they’d be fun to explain in a deposition (if so, I’d love to hear about it). But you should be cognizant that the law provides the means for an adverse party to discover your “private” communications, including many things otherwise considered confidential, either because your confidentiality agreements don’t withstand a subpoena, or they explicitly create an exception for lawful requests from a court or government authority. And whatever is discovered may make you look bad. And you never want to look bad if you can avoid it.

Also remember, there are rules against spoilation of evidence, which normally make it worse for you to conceal or destroy evidence than if you just gave the other party what they are entitled to. There are also certain privileges to consider that prevent certain evidence from being discovered or brought against you, but that topic deserves its own post.

So did anyone actually count the commas?

Be at least as smart as a parking lot.

Time Commitment: 10 minutes.

The gist of this post is that everything is negotiable (except when it’s not). If you want a real world example to anchor that reality in your brain, read on.

A few weeks ago my wife (@sweetielamb) and I went out with some friends to Ybor City for Steve Bristol’s (@stevenbristol) birthday. We don’t get out to Ybor very often so I, being the terribly paranoid person that I am, was concerned about where we would park and whether our car would be safe. Nick and Stephanie (@nickstamas and @stephwunder) suggested a parking lot convenient to our first stop, so we headed there.

The parking lot was an open-air, single-level lot near the heart of Ybor’s nightlife. The lot had a single attendant and no fences or any other means of keeping people out (I’m going somewhere with this, I promise). My car was no safer there than anywhere else in Ybor as far as I could tell. But I was armed with some vestigial knowledge from law school: if I left my vehicle at the parking lot and something happened, the lot owners would probably have to help cover my losses (A side note: if you have any obsessive tendencies at all, don’t go to law school. It will ruin you). I gave the parking attendant our ten dollars, took a red ticket to put on my dashboard, and we caught up with everyone in time to see Steve get a birthday tattoo.

As was statistically predictable, nothing happened to my car that night, Steve completely drained Ybor of Patrón, and the sun came up the next morning. The unpleasant surprise didn’t come until a few days later when I took a second look at the red ticket the parking attendant had handed me.

The ticket had a serial number, some handwritten initials, and a block of legalese text. The text read something like the following:

By displaying this ticket, you agree to hold harmless the owner of this parking lot for any theft, loss, or any other damage to your vehicle. This agreement does not constitute a bailment.

Frustrated by my lack of attention to detail and my apparent exposure to all the risk Ybor had to offer, a fleeting wave of retroactive worry hit me.

The takeaways

As I came down from my baseless fit of fear, I was left with an important reminder: When you form a contract, you are the master of the agreement. You get to decide whether to accept or override default provisions of law, and you can make any agreement you want as long as it isn’t illegal. This creates the following correlating situations.

1. When the parties of a contract have unequal bargaining positions, the party in the better bargaining position tends to get away with whatever they want. In the example above, the parking lot in Ybor had a substantially superior bargaining position to mine. As a consequence, they could present their terms as a take-it-or-leave-it arrangement and they could take liberties with the fact that I was unlikely to quibble with or even read their terms before accepting them. These non-negotiable agreements are sometimes called contracts of adhesion, and the law imposes some reasonable limits to maintain sanity in the system. These limits tend to curtail overreaching provisions, but they don’t keep those provisions out of the agreement in the first place.

2. When the parties of a contract have relatively equal bargaining positions, the terms of the agreement are only limited by the parties’ creativity and by each party’s willingness to accept the other’s provisions. This means that if you are negotiating a typical contract, don’t consider any changes off the table until you’re met with serious resistance from the other party. For example, If you don’t want to accept canned indemnity language, then don’t. (more on indemnity…) If you want to get paid in Gold Krugerrands, say so. Don’t accept someone else’s “standard practice” or even the default operation of law if it doesn’t fit with what you want.

Because people are confronted with form contracts and contracts of adhesion so often, it seems like they frequently fail to assess what their bargaining position is before they begin to make an agreement. When that happens, they may end up agreeing to unfavorable terms without even realizing they had a choice. Don’t let that be you. Weigh your ability to dictate and negotiate terms and use whatever position you have the best way you can.

Be at least as smart as the parking lot.