Legal « Australian Technology and IP Business

March 8, 2005

Record Retention and Electronic Discovery

Ever since Enron, businesses have been aware of their obligation to preserve records in the face of pending litigation.

How do we know whether electronic records exist or have been altered or destroyed? This is the realm of electronic discovery.

Electronic discovery is now a standard tool in litigation. See here.

Merrill Corporation (via Dennis Kennedy) has prepared a series of free on-line presentations (audio synched with slides) on this topic (under New Directions).

So far there are 3 presentations: 2 by Dennis Kennedy (Computers and Copies – Is Every Step Traceable? and The Mysterious World of Metadata) and 1 by Tom O’Connor (Fitting Electronic Discovery in the Litigation Support Process). They are short (10-15 minutes) and easy to listen to.

Whether you are a lawyer, IP Professional or a businessman these presentations give you an insight into the electronic trail that computer records leave.

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Posted 8th March 2005 by David Jacobson in Legal, Web/Tech

February 26, 2005

Choicepoint Identity Fraud Action and Database Privacy and Security

According to Wired News, a California woman has filed the first lawsuit against ChoicePoint (a US data aggregator) for fraud and negligence in the wake of the company’s recent disclosure that it sold personal information about more than 145,000 people to identity thieves.

Choicepoint says "the incident was not a breach of ChoicePoint’s network or a “hacking” incident, and did not involve any of ChoicePoint’s customer information."

An investigation revealed that unknown perpetrators had used stolen
identities to open 50 customer accounts with ChoicePoint to purchase
data on at least 145,000 individuals. They purchased data for more than
a year before ChoicePoint discovered the fraud.

The Privacy Rights Clearinghouse produced this report on action US consumers needed to take.

The Choicepoint case has provoked a renewed discussion about database privacy.

This incident is being used to support a recent report that you are safer online than offline.

BeSpacific has collected some links on identity theft and sale of personal data here and here.

In Australia, you can contact Baycorp Advantage to obtain your credit file to find out what it knows about you. (Fee:$23.00)

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Posted 26th February 2005 by David Jacobson in Legal, Web/Tech

BitTorrent: a disruptive technology?

At the recent Creative Commons conference, one of the speakers from the Youth Internet Radio Network enthused about the possibilities of BitTorrent as "a tool for intercreativity and the democratisation of technology".

What is it? A file sharing service where each of the users download only a part of a file and gets the rest from other users.

Seth Godin also sees the possibilities. In this article, WiredGC speculates about the implications for lawyers.

Open Source Licensing

Open source software has now reached mainstream popularity. How do I know? I heard it discussed on ABC radio one afternoon recently.

Whilst the public are interested in its low cost (ie free), businesses must be aware of the terms on which the software is licensed: if you modify the source code, you must make it available for public use.

SEVEN STEPS TO ADDRESSING OPEN SOURCE ISSUES IN SOFTWARE DEVELOPMENT (PDF) by Stephen A. Mutkoski of Microsoft Corporation discusses the risks that can arise when software developers download and incorporate open source software into company products. Who owns that software?

Dennis Kennedy has collected a range of resources at his Open Source Licence Law Resource Center which focusses on the legal implications and risks.

How can it be economically viable for developers to work on software for free? Read Bruce Perens interesting analysis.

If you buy software based on open source software do you need an indemnity from the vendor?

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Posted 26th February 2005 by David Jacobson in Legal, Web/Tech

February 22, 2005

Australian Copyright Law Review

The Attorney-General Philip Ruddock has announced
a number of copyright reviews that the Government is doing this year:

* The one per cent cap on radio broadcaster royalties for sound recordings;
* Whether it should introduce fair use type exceptions;
* Criminalising unauthorised use of pay TV broadcasts; and
* Whether the criminal offences in the Copyright Act need to be updated to make them consistent with the criminal code
* The Digital Agenda Act amendments; and
* a re-sale royalty arrangement for visual artists.

The Government will also introduce two pieces of legislation in the first half of this year recognising, for the first time, director’s copyright and also indigenous communal moral rights.

It is also working towards acceding to both of the World Intellectual Property Organisation (WIPO) internet treaties this year.

The review of a fair use exception has attracted a lot of attention (eg here). A lot of interest relates to whether the law will recognise that a lot of people video record late night television shows and copy CD’s to their mp3 player.

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Posted 22nd February 2005 by David Jacobson in Legal

January 28, 2005

IP and Free Trade

IP Australia has published a new fact
sheet that examines the impact of the Australia – United States Free Trade Agreement on Intellectual Property.

It is fairly superficial but is worth reading to see the broad scope of the changes.

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Posted 28th January 2005 by David Jacobson in Legal, Web/Tech

January 24, 2005

Remix

On the theme of remix, via Seth’s Blog comes these examples.

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Posted 24th January 2005 by David Jacobson in Legal, Web/Tech

January 23, 2005

Lockdown your domain name

A business’s domain name is an important asset.

This story from Internet Week (via LawTech Guru) records the domain hijacking of panix.com by someone using the MelbourneIT registry. It resulted in a major outage for its 5000 customers.

The article emphasizes the need to tell your registrar to lock down your domain name so that other registrars cannot initiate a transfer without your involvement.

Want to know who is recorded as the owner of an Australian domain name? See Whois AusRegistry.

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Posted 23rd January 2005 by David Jacobson in Legal, Web/Tech

January 19, 2005

Creative Commons and Open Content Licensing Day 2

First Session was a panel on Government and Public Institutions approach to open content licensing.
What became clear was that there was no taxonomy or system for government to assess its copyright holdings (as proposed by Terry Cutler) so that it could not even determine what it should make available for access (whether free or paid) to encourage creativity and innovation. Discussion revealed that the Queensland Government at least is reviewing its default position that if it contracts for work then it gets the copyright to one that is negotiable, case by case. There was some discussion from Copyright Agency about whether government should get copyright from creators in return for grants. Examples of practical implementation such as online teaching and research, digitisation of art collections and filmmakers were discussed.

It became clear that government policy on copyright ownership was ambiguous.

The session concluded by noting again that Creative Commons was not an economic model but a driver for access to copyright material.

The second and last session presented 2 case studies: Aesharenet (an example of licensing in the education sector) and Open Digital Rights Language, which started discussion about the role of DRM in open content.

The conference closed on the note that much policy work needs to be done. Perhaps Queensland can be a leader!

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Posted 19th January 2005 by David Jacobson in Legal, Web/Tech, Weblogs

January 18, 2005

Creative Commons and Open Content Licensing

I was attracted to the Conference by the promise of hearing Professor Lawrence Lessig but by the end of Day 1 my head was spinning.

Here is my snapshot (I am responsible for errors or omissions).

Justice Ronald Sackville of the Federal Court of Australia gave the welcome address: He noted that Australia’s copyright term was now the same as USA’s (ie 70 years from the author’s death) as a result of the passage of the US FREE TRADE AGREEMENT IMPLEMENTATION ACT 2004. He also noted that criminal penalties of up to 5 years could now be imposed summarily for conspiring to breach copyright. He gave a brief explanation of the forces behind copyright law (economic intersts, international treaty obligations, technological changes) and refrred briefly to limits on copyright law eg competition law.

Professor Brian Fitzgerald of QUT introduced the theme of allowing access to and reusing of work (sharing/collaborating) by controlling its downstream use (but not giving away rights). He gave the backbround to the iCommons project in Australia.

Professor Lawrence Lessig gave an inspiring presentation ranging from free culture to creative commons and copyright to DRM technology with great use of multimedia.

It was in question time that a theme for the day arose: what was in Creative Commons for struggling artists (earning less than AUD$14,000 a year)?

After the first break, Neeru Paharia from Creative Commons San Francisco explained the CC licence and gave a rundown on its practical uses.

Ian Oi from Blakes gave a legal view on the Australian licence. Discussion ensued about moral rights and indigenous issues (repeated later in the day).

After lunch Richard Neville chaired a panel (filmmaker, composer/administrator, business services) on the creative industry’s views. Richard Jones said filmmakers were generally sceptical of Creative Commons and were particularly concerned about the use that was made of their work (query whether text and multimedia creators react differently particularly since filmmakers are forced to assign their rights to get the film produced and have to deal with other complex issues?)

Judge Sackville observed that since Creative Commons is voluntary, people should not read too much into it for the future of copyright.

(Someone) commented that CC helps people think about what they are giving away and why?

In the final session John Quiggin introduced a panel on 2 different projects by discussing networking and social capital: one case study is actually running (ACRO) and the other is still being researched (Youth Internet Radio Network) but represented by 2 enthusiastic developers including one who enthused about disruptive technology.

A fascinating day!!

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Posted 18th January 2005 by David Jacobson in Legal, Web/Tech, Weblogs