How California Businesses Must Respond to Data Breaches [e104]

October 13, 2014

The guys kick off the week by discussingthe new requirement for California businesses to provide identity theft solution services after data breaches. They then answer the question, “We developed some IP for clients and could not decide on who owns the IP. As a result, we decided to jointly own it. Should I be worried about the client if they go under or get sued?”

Full Podcast Transcript

NASIR: All right. Welcome to our podcast where we cover business in the news and answer some of your business legal questions that you, the listener, can send in to My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: Matthew Staub is joining us once again today to our Legally Sound Smart Business podcast. Very fun.

MATT: Happy to be back. 104th straight of episode for me being the guest. So, until you have somebody better, I guess it’ll just be me.

NASIR: I’m just waiting to see if we can get some positive response from our listeners. Still waiting for that to make sure you become a permanent part of the show.

MATT: Over a hundred episodes. It had to have been over a year now at this point too, right? I’m trying to remember.

NASIR: No, it hasn’t been quite a year yet, but I just wish someone would give – I mean, instead of all the negative feedback I get for you, I just wish somebody would just give one positive comment – just one would be good enough, you know?

MATT: All bad?

NASIR: Yeah, it’s been all bad, but I love the feedback. We get a ton of feedback – a ton – but just all negative about you. So, that’s okay.

MATT: Ugh. I’ll work on it, I guess. This will be the episode, I think this is the one I’m going to turn people on, and what’s a better way to do it than talking about data breaches? That’s an exciting topic that everyone wants to hear about.

NASIR: Yeah, agreed.

MATT: This is California, once again, kind of being the, I guess, early adopter- the first ones to really step forward and do this. So, a little bit of background, in 2002, they were the first state I believe to require businesses to notify people affected of data breaches which seems ridiculous now that, prior to 2002, you could just have data breaches as a business and not tell anyone. It seems pretty important but I guess, over ten years ago, things were a lot different but still that’s far enough in time where they should have been telling people beforehand. But, anyways, now California is going to be the first one again to require businesses to provide free identity theft prevention services to people affected by a data breach. It’s credit monitoring in fraud resolution services. I think it span in one year in length. I don’t know if this just the way this is worded or if it only does apply to California residents, but it’s at no cost to California residents. I would think it might expand further than just people from California but I don’t know. It’s a little bit vague on how that works out.

NASIR: Well, what it does mean is, if you are operating even outside California and some of these data breaches affect California residents,, then you may be subject to this law, but I’d like to look into more on how that actually can be implemented because you know there are aspects of states rights vs federal rights whether states can actually regulate interstate activity and especially if you’re not actually necessarily operating in that state but may have customers in that state, it might be a different issue. But, you know, you mentioned California taking the lead on this and that’s one really cool thing about being a licensed lawyer in California because we operate in different states around the country and one thing about California is that they are always on the forefront with many different laws and they do set trends and they do set items that sometimes don’t work and other states don’t follow because basically they look to California to see how it can work out.

MATT: You’re right. It’s kind of a double-edged sword and, you know, other states sometimes look to California to adopt things and, you know, they adopt something that kind of backfires, everyone just kind of pokes fun at them and said, “Oh, it’s stupid,” and, if they do something right, it’s, “Well, you should because you’re the biggest state so you should do things right.” So, it’s kind of how it is, but I founnd something interesting in here. It said 43 percent of businesses have had a breach in the past year which, I mean, those vary obviously from smaller breaches to Home Depot style breaches that just occurred. I only know of that because I just got an email that I’m getting a new credit card because I bought a ton of stuff from Home Depot, so many transactions so I guess my account’s just sending me a new credit card.

NASIR: Yeah, that happened with Target, too. I know my wife got a new credit card.

MATT: I think the Home Depot one was much bigger. Target’s was big; I think Home Depot’s was even bigger but wasn’t during the holiday season so maybe that’s a little bit different.

NASIR: On one hand, I’m not surprised about that percentage of number of data breaches because I think there’s just so much data out there, it’s so easy – one vulnerability. But, at the same time, what I’m more surprised about is the big companies. I mean, Home Depot and Target, it’s just almost unforgettable. They have to have those protections in there. For small businesses, you know, I was thinking about the cost. You know, how much does this fraud protection and credit monitoring actually cost? I know that a lot of these other credit reporting agencies like Experian and also LifeLock and so forth, they sell at different packages. I’m wondering if it’s the same thing, but that can range from $10.00, $20.00 per month. For a year, that’s about a hundred some dollars per customer – that can really add up if you have a major breach and I assume they probably get a break if they buy in volume, and assuming that’s actually how much it costs, maybe it’s less, much less.

MATT: That was one of the last things I had on when what I was thinking about this. The cost of prevention is going to be, I would think, less than the cost to provide this identity theft preventions to everybody. So, you’re going to have to protect your data anyways so you might as well just do it. You know, if you have to spend a little bit more money to do it, especially now, then it’s definitely going be worth it as opposed to, you know, reacting. You’ve got to be proactive and not reactive. It’s going be financially better but I don’t know if there’s any actual numbers in terms of how much it costs for for one per customer.

NASIR: Yeah, and keep in mind, there is definitely insurance for these kinds of data breaches and I’m sure new insurance policies are going to contemplate this specific issue in California and, frankly, as other states follow, I mean, like I said, if California is adopting this, this is obviously the first step in other states following it as well.

MATT: Yeah.

NASIR: And, frankly, from a consumer perspective, it kind of sucks, you know, as a small business, if I have to pay that amount to recover it. I mean, it’s another additional expense that California is imposing on its business tax payers. But, at the same time, as a consumer, it’d be kind of nice not to have to worry about that when I’m shopping and so forth, yu know?

MATT: Yeah, that’s definitely true. Well, we talked about data breaches and then you somehow threw in constitutional law and this story so I think people are definitely excited on this Monday morning, Monday afternoon.

MATT: Should we just get into the question of the day?

NASIR: Yeah, let’s do it.

MATT: All right.
“We develop some intellectual property for clients and cannot decide on who owns the IP. As a result, we decided to jointly own it. Should I be worried about the client if they go under or get sued?”
This is interesting.

NASIR: Yeah, it’s funny. Like, “Okay, we can’t decide who owns it, let’s just both own it together.” And I guess that’s the way to do it but it just seems like, why don’t you just parse it out and spend some time figuring it out? I think jointly owning any intellectual property is just a mess to deal with because people think intellectual property, it is intangible property, right? But, at the same time, when you’re talking about rights and obligations attached to it, you have to think about it as if it was a car. You know, imagined jointly owning a car. Yeah, you both have uses for it, but what about if you let other people use it and how that can affect the other person that’s also the owner? Like, for example, you own a car, you go bankrupt, now what happens to the car when you’re jointly owning the car? It could actually affect, let’s say that the ownership interest in that car goes to a creditor? Then, now all of a sudden, you’re jointly owning this intellectual property or this car with some creditor of your ex-partner, so to speak.
MATTT: I jointly owned my car, is that bad? You’re telling me I should take my wife off of the title.

NASIR: Oh, with your wife? Oh, I thought I jointly owned the car with you.

MATT: Oh, yeah.

NASIR: I thought it was partly mine.

MATT: That’s my other car.

NASIR: Yeah, I think we should sell it.

MATT: I mean, it’s really good points. Jointly owned things can be pretty tough just for all the reasons you mentioned. I mean, there’s some other logistical things as well with copyrights and patents. I think for copyrights you’re required to share profits if it’s jointly owned. Patents, there’s joint participation issues. And this person raised the issue of going under, get sued. If that happens, like, if there’s bankruptcy, if the joint owner goes bankrupt, it’s going to be some issues. It’s just going to be such a hassle to deal with. I would say – I guess, let me go back and see what their question even was – should I be worried? Yeah, I mean, I would be worried. I guess I would try to negotiate, moving forward, don’t do this and then, you know, maybe go back and try to negotiate and get some ownership or give up ownership or whatever you have to do. Maybe it’s worth keeping the ownership for the hassle but it definitely could come back and backfire. I think that’s what this person was kind of alluding to.

NASIR: Yeah, absolutely. So, bottom line, what should they do?

MATT: I think, bottom line, just don’t jointly own intellectual property with you, especially if it’s you and your client. If it’s you and other company that are creating it together, I mean, that makes more sense, I guess. But, if you’re creating something for your client, I wouldn’t do it. If anything I mean, I would prefer to just give up the rights to it as oppose to retaining the ownership. Just charge more or something.

NASIR: Yeah, and, by the way, just because you don’t own it doesn’t mean you can’t use the intellectual property and I think that’s what’s the answer here. In lieu of jointly owning a license agreement where it could be indefinite, it could be non-exclusive, et cetera, so that you get the benefits from the actual IP but then the actual ownership, you know, whether it’s resold to somebody else and so forth, because also, like, more reasons why not to do this is that it also gets very complicated if you’re also jointly owning for, say, the copyright. The copyright law is such as that, if there’s two owners and there’s revenue that’s generated from that copyright, then in theory that should go to both of you and that may not be what you originally intend because maybe you make a separate deal here or there dealing with the copyright and now you have to share it with the person or the other company and, again, it’s unintended consequences is what you’re trying to avoid here – or you should be trying to avoid.

MATT: Yeah. I like the licensed idea. It’s a good compromise.

NASIR: I have to mention, because I started thinking about this is kind of going reverse back to our first story but I was thinking about how the data breach notification law thta California passed, what did you say was back in like in 2003 or so?

MATT: Yeah, ‘02.

NASIR: At that time, they were trying to figure out, if you’re not operating in California but then you have customers that are California residents, what kind of notification process do you have to go through? And they did find that, if the statute specifically applied to that company, for example, if it was personal information and it was a California resident, there was actually breach in security, it fit all the criteria of the actual law suit., even if you don’t have a nexus to the state of California – and, if you recall, we used the word nexus last week with our interview with the founder of Tax Jar but – that loss still applied. So, I’m willing to say that it’s going have the same effect. So, if you have any California users or residents or customers, it’s kind of a big burden on you, I would say.

MATT: Well, you did it again. We had data breach constitutional law and tax all in one. Let’s see… I don’t know if we’re ever going to be able to beat that.

NASIR: No, that’s our best popular topics, right?

MATT: Yeah. Are the people, employees are independent contractors, too?

NASIR: Oh, don’t even tempt me.
All right. Well, thanks for joining us in our constitutional law tax episode.

MATT: Yeah, keep it sound and keep it smart.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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