Source Code

Definition

Source code is the fundamental component of a computer program that is created by a programmer. Also known simply as code, it is any collection of text, with or without comments, written using a human-readable programming language, usually as plain text.  Comparing a book to a software program, the source code would be the words in that book.

Why it matters

While in-house lawyers may not need to programmers, a foundational understanding of what source code is and software development concepts can improve their ability to provide effective legal guidance at technology-driven companies.

  1. Intellectual Property (IP) protection: In-house lawyers often deal with intellectual property (IP) matters, such as patents, copyrights, and trade secrets. Familiarity with source code can help them better understand the company's proprietary software and assist in protecting it through patents, copyrights, or other legal means.
  2. IP rights and licensing: Many companies use open-source software in their products or rely on software from other companies to develop their own technology. Understanding source code can help in assessing whether software infringes on existing patents or copyrights, in vendor agreements or other licensing negotiations, and in ensuring compliance with open-source licenses, which have their own specific requirements that could impact the business's use of third-party software. When negotiating software licenses or technology-related contracts, understanding source code can help in-house legal teams grasp the technical aspects of the agreement. This knowledge allows them to draft more precise and effective contracts that align with the company's interests.
  3. Cybersecurity and data protection: With the growing concern over the protection of sensitive information and significant legal and financial consequences from data breaches, in-house lawyers must understand the basics of how software handles data. Knowledge of source code can aid in evaluating the security features of the software and compliance with data protection laws such as the General Data Protection Regulation (GDPR) in Europe or the California Consumer Privacy Act (CCPA) in the U.S. It also helps in drafting contracts such as Data Processing Agreements (DPAs) that include robust data protection and cybersecurity clauses.
  4. Litigation and disputes: In cases of software-related litigation or disputes, such as patent infringement or copyright claims, understanding source code can assist in-house lawyers and outside counsel in assessing the merits of the case, gathering evidence, and developing legal strategies.
  5. Collaboration with technical teams: In-house lawyers often work closely with product, engineering, and product marketing teams when it comes to product feature development and marketing launch compliance. Having a basic understanding of source code can facilitate better communication and collaboration between legal and technical teams, leading to more efficient problem-solving and decision-making.

While not all in-house lawyers need to become coding experts, a basic understanding of software development processes and the ability to engage meaningfully with technical experts are increasingly important skills. This builds better transparency, trust, and alignment with cross-functional stakeholders. Given the pace of technological change, those in-house counsel that can bridge the gap between legal expertise and technological understanding can provide immense value to their organizations.