| Contextual Infrastructure Planning and Design |
| Legal Issues Relating to the Ownership and
Sharing of Computer Generated Data |
| By Mark J. Cipolloni, Princeton, New Jersey 1-609-734-7006,
cipolloni@pbworld.com |
| In a continuing series
of articles about how technology can improve PB's business, Mark discusses
the legal issues to consider when dealing with computer data. This
update of a previous article, which is also reprinted as a reminder
for those who may have missed it the first time, accounts for recent
advances in computer technology. |
|
PB Computer Program QA/QC Policy
A wide variety of computer software is used to analyze design
alternatives and help solve technical problems. This practice
raises quality control concerns regarding the appropriateness
of the solution algorithm employed by the software creator
relative to the problem that is to be solved. The software
may also be misapplied, by accident or oversight, in producing
an answer that is used. Finally, the results produced by the
software and analyst may be improperly interpreted when applied
to the project feature.
In each of these areas of concern, the issue of adequate quality
control, review, and checking arises. While our basic quality
control procedures cover these matters, special attention
must be directed to controlling quality with respect to computer-assisted
solutions to technical problems and design. The responsibilities
of those using such tools and techniques are as follows:
1. The User/Analyst. The user of software that is
to be employed to solve technical and design problems will
verify that the software is appropriate to the problem to
be solved, including the software's constraints and requirements,
and will make an entry to that effect in the design calculation
notes and sign it. When original software is created to solve
a problem, it will be used only after it has been validated,
when it is fully documented on hard copy and when that documentation
is included in the design notes.
2. The Discipline Leader. The discipline leader and/or
the project manager will also indicate satisfaction with the
choice of software by so noting in the job notes.
3. The Checker. The checker will check and verify all
input for the computer-assisted solution, will check and verify
the constraints or boundary values (i.e., end conditions,
maximum and minimum range of acceptable answer, etc.) set
into the solution, the transfer of the computer-generated
results to the next step in the design process, and finally,
the reasonableness of the final result. This last step is
very important and may require a significant degree of experience
and judgment to be performed adequately.
4. Independent Review. As a matter of quality control
of a computer-assisted design solution, the review of all
important design analyses should be performed by a qualified
individual who was not directly responsible for the work and
who uses alternate software or calculation methods to solve
the same problem and verify adequacy of the original conclusion.
All parties involved in selecting and applying computer software,
and checking and reviewing of results, should sign the design
notes and indicate their role. |
As the use of computers at PB increases, it is important for PB project
managers to become more cognizant of the legal issues related to the
ownership, use, and sharing of computer generated data. This article
addresses some of these issues and ways to avoid problems and/or limit
our liability.
Computer
Related Negligence and How To Manage The Risk
Professional negligence is usually defined as the failure to exercise
the degree of skill and care required by customarily accepted professional
practices and procedures. This statement not only applies to our engineering
designs done manually; it also applies to designs created with computer
programs. Erroneous computer data in our designs may lead to liability
for PB. Examples1 of reasons why such problems can arise
include the following
Failure to select the
proper software for the task at hand. Do not assume that the program
you want to use is the right one or the best one. Read the documentation
carefully. If you cannot find the answers, ask questions or call the
manufacturer. We will be distributing a database of application software
in use at PB and compiled by each of the Practice Area Networks. Use
it as your guide when trying to select the proper software to use.
If you cannot find someone in the firm who has thoroughly checked
all aspects of the program, you should perform calibration tests to
verify that the software gives correct results.
Failure
to select the proper formulae or assumptions for properly completing
complex calculations. Make sure you read the program documentation
carefully and check the formulae that the manufacturer is using. Don't
assume anything. Discuss with current and past users their experience
in using the program and get their comments. Understand the program's
assumptions and limitations to check on the validity of applying the
program to your job. Sometimes what is programmed into software may
deviate significantly from the general assumptions we use in engineering
theories.
Failure to assess and consider the proper margin
of error. As with any manual design, it is important to consider
margin of error when using a computer program. There is a perception
that computer generated results are always very precise. In some instances
there may be a margin of error in the results due to an assumption
or rounding made by the programmer.
Inadequate computer
training. Learn how to use the program properly. Request training
or help from qualified personnel if you feel you are guessing how
the program works.
Improper data entry or data verification.
As an absolute minimum, all data input must be thoroughly checked
by an independent checker.
Failure to detect software
errors. If you read the fine print of all software documentation,
you will find that the manufacturer makes no guarantee for the program
output. The design professional is ultimately responsible for the
deliverable. All software used must undergo a thorough QA/QC, even
when upgrading to a newer version of software. Many times we find
that what worked correctly in one version of software may not work
correctly in the next. PB's Software QA/QC policy is listed at the
end of this document for reference.
Failure to take appropriate
steps to minimize the risk of loss due to computer viruses. Every
PB office should have received a copy of the Norton Anti-Virus program
for every computer. It should be installed on every computer to run
automatically. If it is not, immediately notify your PC Administrator.
Undetected errors resulting from computer data being translated
from one system to another. Be very careful when translating computer
data from one system to another. Computer translation programs are
seldom 100 percent accurate. Check the results very carefully.
What to Do When Transmitting Data To
Our Clients or Subconsultants
When we transmit computer data to a contractor, project owner, or
a third party, it is possible that unauthorized changes can be made
to the drawings or data. We may be held liable for the loss resulting
from the unauthorized modifications made by those outside parties
because it is believed that the entire work product was ours. Without
the proper safeguards, there is no way to determine whether the work
product is the engineering professional's original or a copy that
has been modified2. Consider taking the following steps.
Include Contract Stipulation. Stipulate in the contract that
any unauthorized use or modifications will be at the user's sole risk,
and the user will indemnify PB against all liabilities that result
from such use or modifications. An example of a disclaimer to include
with every computer file given to a client or subconsultant is:
Acceptance of this digital CADD information (the "materials")
indicates your understanding of and agreement with the following
terms and conditions. If you do not accept these terms and conditions,
you must promptly return this information to Parsons Brinckerhoff,
Inc. ("PB") and not use any of the information contained
therein.
Any modification to or reuse of the materials for other than the
specific purposes intended, without PB's prior written authorization,
by Outside Firm, its agents, or others shall be at the user's
sole risk and without liability or legal exposure to PB. Furthermore,
Outside Firm agrees to defend, indemnify, and hold PB and its
employees harmless from all claims, injuries, damages, losses,
expenses, and attorney's fees arising out of such reuse or modification
to the materials.
The submitted data files are intended to work only as described.
These files are compatible only with XXX program version ?, operating
on a personal computer running Windows XX. PB makes no warranty
as to the compatibility of these files beyond the specified release
of the above-stated software or on older versions of the software.
PB is not responsible for uses of the material outside of or beyond
the scope intended3.
Limit Access. Access to our data can be limited through password
encryption or other similar techniques.
Use Adobe PDF. Unless the contract specifically requires the
data or file be submitted in a certain file type, converting the file
into an Adobe PDF file is preferred. Adobe PDF has become the de
facto standard for sending computer information that is meant
to be read-only. It can be viewed and printed, but not changed. Also,
a PDF file will always print exactly as it appears on your computer,
regardless of the printer the user has. Page breaks and formatting
will remain exactly as you intended.
Use a CD-ROM. CD-ROM writers are very inexpensive now
and no office should be without one. By placing all your computer
files on a CD-ROM, PB is protected from any tampering because CD-ROMs
are read-only. However, unlike a PDF file that can never be changed,
a file can be copied off a CD-ROM in its native file format (such
as a Microsoft Word DOC file) and manipulated.
Specify
File Format. Another issue that arises when transmitting data
to our clients or subconsultants is specification of format. The contract
between PB and the client, or PB and our subconsultant, must specify
the format of the electronic deliverable(s). For example: "Microsoft
Word Version 98/6.0, or Microsoft Excel Version 2000." If it
is a CADD file, the contract should specify a lot more. CADD files
require specifications on drawing levels/layers, symbology, reference
file structure, plotting pen table requirements, etc. If the contract
does not specify the format, it is important that you ask what it
must be before starting any computer work that will be turned over
to the client. History has shown that it is better to do the work
with the original software, and in the format that the client wants,
than to try to translate it later. More than once, PB has had to redo
work at our expense because the client refused to accept the file
format we used.
Allow for Upgrades. If the project's
life spans several years, computer technology may advance tremendously.
An appropriate clause may be included that allows for upgrading to
some technologically advanced media and/or system as long as it is
mutually agreed upon in writing by authorized representatives from
both parties. Seek an understanding with the client that conversion
and upgrading cost for the files should be included in the budget.
At the beginning of their projects, project managers and negotiators
should also verify with their computer groups PB's capabilities for
accepting and producing the media that the client wants.
Contractually Maintaining Ownership Rights
In Computer Data
When negotiating a new contract, consider the following4:
- Require an explicit acknowledgment by the
receiving party of the ownership rights of the party providing
the computer files.
- Require an explicit acknowledgment by the
receiving party of the status of the computer data as proprietary
information.
- Require a promise by the receiving party
not to challenge the other party's rights in the work.
- Characterize the transaction as a limited
license to use the work. This is an issue of copyright of design.
Some owners have the attitude that since they paid for a design,
they own all of it for whatever use, wherever. This is a contract
issue; if the owners want total rights to our design they should
pay more for it. If they do pay us more for total rights, it is
important to agree on who assumes liability arising out of our
program.
- Establish appropriate restrictions on unauthorized
use of the work.
- Establish appropriate restrictions on unauthorized
disclosure and dissemination of the work.
- Set forth provisions regarding ownership
of derivative works based on the work.
- Include an agreement that the party providing
the work is entitled to get an injunction to prevent the receiving
party's breach of the agreement.
Contractual Shifting of Liability5
PB managers should consider addressing the following contractual issues
that may bear on this topic:
Indemnification. Limit indemnification to other parties to
what is reasonable. For example, if the engineering prime indemnifies
the other party for the engineering prime's negligence, the other
party should indemnify the engineering prime for the other party's
negligence.
Limitations on Liability. Try to cap liability
exposure. For example, limit liability to the amount of money PB has
received for its services. Alternatively, cap liability at the insurance
policy coverage limit required in the contract.
Original
Drawings. The contract should specify that the hard copies of
the computer overlays printed by PB are the only documents to be considered
"originals" and that no modifications may be made to the
drawings or data without PB's authorization. This would help deflect
liability where unauthorized modifications are made to computer data.
Integration Clause. The contract should include a provision
that states that the contract supersedes all prior negotiations and
prior agreements, whether written or oral. This "integration
clause" should help to protect PB against a claim that is bound
by representations alleged to have been made prior to entering the
written contract.
Suggested Contract Language to Limit Liability. "Any
use or reuse of original or altered files by others without adaptation
by PB or written confirmation by PB that the files are suitable for
the specific purpose intended will be at User's risk and full legal
responsibility. Furthermore, the User will, to the fullest extent
permitted by law, indemnify and hold Parsons Brinckerhoff harmless
from any and all claims, suits, liability, demands, or costs arising
out of or resulting therefrom. Any such use, reuse, adaptation, or
confirmation will entitle Parsons Brinckerhoff to additional compensation
at the then current rate."6
Suggested Contract Language to Establish Acceptance Period.
"Because data stored on electronic media can deteriorate
undetected or can be modified without Parsons Brinckerhoff's knowledge,
the User agrees that Parsons Brinckerhoff will not be held liable
for the completeness or correctness of the electronic media after
an acceptance period of XX days (where XX = 90 to 180 days) after
delivery of the electronic files. PB stands by the accuracy of the
sealed drawings or hard copy that accompany the submittal."7
A simple example of contract wording used in a PB project where
CADD was used:
The use of a CADD system shall not relieve or exempt the Consultant
from any procedure or drawing requirements stated herein.
The record copy of all drawings will be a printed mylar copy,
sealed by an Engineer registered in the State of ZZZ. Reproducibles
shall be true copies of these drawings. Any differences will be
resolved in favor of the record copy.
The Consultant shall provide convenience electronic copies of
the drawings in the order set forth herein for the use at the
Construction Document level and in the as-built form. The ZZDOT
will perform acceptance tests on the electronic copy within 45
days of receipt and advise the Consultant of any deficiencies.
Deficiencies shall be corrected and the amended file provided
by the Consultant.
Establishing Disaster Recovery Procedures8
Fires, floods, theft and computer viruses can destroy vast amounts
of work product. It is good practice to institute disaster recovery
policies, including daily back-ups, and off-site storage of certain
back-ups.
The firm's disaster recovery policies should address the following:
- Frequency of backing up software, data, drawings,
and files
- Storage of certain back-ups off site
- Proper indexing and cross-reference of back-ups
so that drawings and data can be easily found and restored
- Keeping of permanent hard copies of all important
records and drawings off site
Conclusions
The Contract Services department in the New York office (1-212-465-5017)
must review all agreements that PB enters. That especially includes
contracts where PB is providing electronic computer files as part
of its deliverables. Contract language related to computer deliverables
is important. We must give it the attention it deserves. To the extent
corporate disaster recovery procedures for computer-generated data
have not been established, consider the advice given above for your
office. |
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Mark Cipolloni is a Senior Project Manager for
high-tech projects in the Princeton, New Jersey, office. He is also
a Senior Professional Associate. He has been with the firm for almost
21 years and has been one of the strongest proponents of the computerization
of PB over the last 10 years. In addition to his project assignments,
Mark serves as Manager of Computer Technology Standards and Applications
under OPP.
1Titles of examples taken from Ned E. Barlas, Esq., "Legal
Issues Relating to the Ownership and Sharing of Geographic Information
System Files and CADD Data".
2Ibid
3Michael P. Ingardia, P.E. and John Hill AIA, CADD Risk
Management for Design Firms, CADD Contracting Guidelines for Design
Firms"
4Barles, "Legal Issues"
5Ibid
6Ingardia and Hill, "CADD"
7Ibid
8Barles, "Legal Issues" |
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