A recent article in The Atlantic contains interesting observations for contract negotiators and litigators, and is particularly relevant to those operating in the tech world.
Professor Jonathan Zittrain, professor of law and professor of computer science at Harvard, and co-founder of his Berkman Klein Center for the Internet & Society, says the decentralized nature of the Internet has created a significant problem of gaps in the responsibility to maintain the contents. that others rely on. Or, as he more eloquently describes it, “the links work transparently until they no longer work. And as the tangible counterparts of working online fade, these gaps represent real gaps in humanity’s knowledge ”.
Professor Zittrain identified two particular problems – “content drift” (ie changing what is available and accessible on a particular link) and “link rot” (ie where the link itself has been removed and nothing is visible). These are considered “endemic to the web” and can pose significant problems in areas where long-term permanence of information is important, such as scientific articles and court judgments. This is illustrated in a hyperlink that is in one of the 2010 United States Supreme Court judgments – the content of that link disappeared and was replaced for a while with a message that read:
“Aren’t you glad you didn’t quote this webpage… If you had, as Judge Alito did, the original content would have been long gone and someone else could have bought the domain to comment on the transience of information related to the Internet age ”
The use of hyperlinks is common in certain types of technology contracts, where vendors often like to provide hyperlinks to other documents such as information security policies, acceptable use policies, level agreements. terms and conditions specific to a country or a service. Vendors will say this makes sense for a number of reasons, especially for commoditized services like cloud solutions. The use of hyperlinks streamlines the procurement process by ensuring that the key contract document focuses on the important business terms negotiated. It allows modularity and the ability to incorporate different terms for different services. It also simplifies the process of amending the contract, for example when updating the list of applicable security measures. Obviously, it’s easier to update a link to a website than it is to simultaneously negotiate changes to thousands of agreements, and this often directly affects the price at which the service can be provided.
On the client side, there may be difficulties with the use of hyperlinks in agreements. The use of links to different documents makes it difficult for the purchasing and operational teams to understand all of what the service provider is committed to providing, which can lead to differences in expectations between the parties. The concern Prof. Zittrain raises tends to be particularly acute for clients who enter into long-term framework agreements or negotiate automatic renewal terms, thus reducing the likelihood of finding the document referred to at the link in question. when necessary.
Hyperlinks can also cause difficulty if there is a latent performance issue. If this problem does not immediately become apparent, parties might have a hard time being sure what the relevant link was saying at the time the problem was caused. On a more practical level, moving significant amounts of detail outside of the formal contract document can also cause problems with organizing internal approvals and management approvals on the client side.
It is clear that a reasonable balance must be struck to allow the supplier some flexibility and the customer some certainty. Much of this will be wrapped up in the usual questions of negotiating position, service delivery model and volume commitments, etc. But it is important that each party understands the legal and practical benefits and risks inherent in this process and thinks about how best to manage them.
Professor Zittrain’s full article can be found at this link – although, of course, there is no guarantee that it will still be there by the time you click on it.
The content is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. This may be termed a “lawyer advertisement” requiring notice in some jurisdictions. Past results do not guarantee similar results. For more information, please visit: www.bakermckenzie.com/en/disclaimers.