A recent article which appeared in The Atlantic has some interesting observations for contract negotiators and litigators, and is particularly relevant for those operating in the technology world.

Professor Jonathan Zittrain, a law professor and computer-science professor at Harvard, and a co-founder of its Berkman Klein Center for Internet & Society, argues that the decentralised nature of the internet has created a significant issue of gaps in responsibility for maintaining content that others rely on.  Or, as he more eloquently describes it “Links work seamlessly until they don’t. And as tangible counterparts to online work fade, these gaps represent actual holes in humanity’s knowledge”. 

Professor Zittrain identified two particular issues – “content drift” (i.e. changing what is available and can be accessed at a particular link) and “link rot” (i.e. where the link itself has been eliminated and no material can be seen).  These are considered as “endemic to the web” and can cause significant issues in areas where the permanence of information in the long term is important – such as in scientific articles and court judgments.  This is illustrated in a hyperlink which could be found in one of the US Supreme Court judgments from 2010 – the content from that link disappeared and was replaced for a while by a message which said:

“Aren’t you glad you didn’t cite to this webpage … If you had, like Justice Alito did, the original content would have long since disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the internet age”

The use of hyperlinking is common in certain types of technology contracting, where suppliers often like to offer hyperlinks to other documents such as information security policies, acceptable use policies, service level agreements, and country or service specific terms.  Suppliers will argue that this makes sense for a number of reasons, particularly for commoditised services such as cloud solutions.  The use of hyperlinks streamlines the contracting process by making sure that the key contractual document focusses on the important commercially negotiated terms.  It allows modularity and the ability to incorporate different terms for difference services.  It also makes the process for amending the contract more straightforward, e.g. when updating the list of applicable security measures. Evidently it’s easier to update a website link than to negotiate amendments to thousands of agreement simultaneously, and often this directly affects the price at which the service can be delivered.

On the customer side, there can be difficulties with the use of hyperlinks in agreements.  The use of links to different documents makes it hard for procurement and operational teams to understand the entire scope of what the service provider has committed to deliver, which can lead to expectation gaps between the parties. The concern raised by Professor Zittrain tends to be particularly acute for customers who enter into long term framework arrangements or negotiate automatically renewing terms, reducing the likelihood of finding the document referred to at the link in question when it is needed. 

Hyperlinking can also cause difficulties when there is a latent performance issue.  If this issue does not become immediately apparent, the parties might struggle to be certain what the relevant link said at the time that the issue was caused.  At a more practical level, moving significant amounts of detail outside of the formal contractual document can also cause problems with arranging internal approvals and sign offs from management on the customer’s side.

Clearly a sensible balance needs to 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 bargaining position, service delivery model and volume commitments etc.  But it is important for each party to understand the legal and practical benefits and risks inherent in this process and to consider how best to manage them.     

The full article by Professor Zittrain can be found at this link – although of course there is no guarantee it will still be found there at the time you click on it.