Technolawyer – a technology information service for lawyers – is publishing an ebook today called BlawgWorld 2007 with TechnoLawyer Problem/Solution Guide. BlawgWorld 2007 contains “thought-provoking essays from 77 of the most influential blawgs”, including eLegal Canton. My blog was also included in the 2006 edition.

According to the press release “BlawgWorld 2007 features a remarkable collection of essays from the legal blogosphere and the 2007 TechnoLawyer Problem/Solution Guide offers a new way for law firms to find answers to management and technology questions.”

The 2006 edition was downloaded 45,000 times.

For the London Free Press – July 30, 2007

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The Free Software Foundation (FSF) recently released the newest version of its General Public Licence, commonly known as GPL v.3. The GPL is a common open-source licence that governs the use of certain software.

Anyone that modifies and distributes GPL-licensed software, or uses GPL-licensed software as part of its product offerings, should consider the ramifications of the new licence. There is not much to be concerned about if one is merely using software licensed under the GPL.

Open-source software is software that includes the source code, or human-written version of the software, along with the object code, or machine-written software. While it’s often available for free, the defining attribute is that the user gets the source code, which it is able to modify and distribute. The GPL is one of many open-source licences.

One part of the GPL that has carried risk for businesses using it to develop and distribute software, is that they may be obligated to provide their source code to customers, depending on how it has been done.

Version 3 contains several revisions. The most notable ones involve patents and what has been referred to as “anti-TiVoization.” Some of the language has become more legal in nature, which should make it easier to interpret. The GPL was originally drafted as a philosophy or manifesto. That meant while it was easy to understand the perspective of the licence, it was not always easy to understand how it worked in individual fact situations.

The licence contains an explicit patent grant, meaning that any entity that contributes software using the GPL grants with it a perpetual, royalty-free licence to any of its patents that apply to the software.

It also contains a provision to block future deals similar to that between Microsoft and Novell, in which Microsoft protected customers of Novell’s Suse Linux Enterprise Server from certain Microsoft patent-infringement lawsuits. Under GPL 3, if one provides patent protection to some software users, that protection is automatically extended to everyone who gets the software, no matter how.

TiVo personal video recorders use Linux, which is governed by the GPL. The GPL’s authors didn’t like that TiVo was designed to not work if someone modified the software, so they included provisions to discourage restrictions on modification.

If you obtain software using GPL 3, you are bound by it. But software creators are still able to provide their product under GPL 2, if they wish.

While this may sound complex, as with any contract, the important thing is to understand the ramifications of the GPL, or any open-source licence, before using open-source software for anything but internal purposes.

The issues can be dealt with, but they need to be considered early, as a different approach to programming and distribution may be required to meet your needs.

The big news in IP law is the Supreme Court of Canada’s decision on parallel importing. Kraft had the exclusive right to sell Toblerone bars in Canada. They sued to stop another party from importing them from Europe. The basis was copyright in the packaging.

The court decided against Kraft. The IP bar is buzzing about the decision mainly because the reasons behind it are not totally clear. It was a 7 to 2 decision – nothing odd about that. But the majority rendered 3 separate reasons, all deciding on different priciples. That makes it hard to determine what the law really is on the subject.

I’ll avoid the obvious bad comments like – it was a dark day for Kraft – or – mountains of evidence against Kraft – or – Kraft not crafty enough for SCC – or – SCC serves tasty treat for importers – or – SCC expresses different tastes for Toblerone ….

For more detail take a look at Howard Knopf’s comment in his Excess Copyright blog. He was involved in the case.

ITBusiness .ca has an article entitled HR departments use biometrics to account for employee attendance that talks about a business that uses employee fingerprints to track their working hours.

The interesting part for me was how the system was designed with privacy in mind from the outset. Designing privacy into technology and processes is a common theme of Privacy Commissioners and privacy advocates.

The system mentioned in the article stored info about an employee’s fingerprint on an ID card. That card is read, along with the fingerprint, which authenticates the user. There is no central database of fingerprint data. The fingerprint data that is stored on the cards is not the actual fingerprint – just enough to allow the system to make the match. The fingerprint data on the cards is not usable to reverse engineer the fingerprint, and is not compatable with the methods used by law enforcement.

That’s the right way to do it – the best way to avoid data leaks and unintended use of data is to never have it in the first place.

Read the ITBusiness.ca article

Read an earlier article of mine on the topic

I bought a notebook computer recently for my daughter that came with Vista home premium. My first impression after playing with it for a few days is that I like Vista much better than XP. It connected with my home network quickly and easily – printing from a printer attached to another computer was a breeze. Much easier than when I initially set up my network using XP a few years ago.

So in my view – if one is buying a new computer – the only reason not to get Vista is if there is still some compatibility problem with some corporate software you have. I question though whether upgrading a current computer from XP to Vista is worth it by the time you invest in the cost of Vista, hardware upgrades and time. If you want to do that, you might as well refresh the entire box.

My dilemma now is that the main computer I use at home is a few years old, and while it works fine, its starting to feel old – might just have to get a new one sooner rather than later. And after using a widescreen notebook – have to have a widescreen monitor.

(Disclosure – yes, I am an occasional guest blogger on Microsoft’s IT Managers blog – but its not for compensation, and Microsoft had nothing to do with my computer purchase.)

For the London Free Press – July 23, 2007

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UPDATE: A reader pointed out that since this article was written, the Federal court of Appeal overturned the section 7 finding, saying that BMW had not “used” the “M” mark. Thus BMW was not successful in stopping Nissan from using any of the “M” marks. Read the decision.

Two auto giants recently sparred in court over several trade-marks. The dispute between BMW and Nissan arose over the letter M and its design.

BMW uses the M combined with a number or a word as a trade-mark for its M-class line of luxury vehicles, parts and accessories. Nissan uses the M for a line of cars under its Infiniti luxury line.

BMW was successful in part after the Federal Court found that BMWs proprietary rights in its M, M3, M5, M6 and “M and design” were violated contrary to section 7 (b) of the Trademarks Act. Nissan was liable under this section of the Act with respect to BMW’s unregistered marks M and M6.

Section 7 essentially makes it illegal to pass off your wares as another’s, or to cause confusion between your wares and another’s.

BMW objected to the use by Nissan of the letter M standing alone in its advertisements and the use of M6 for a sports package developed for the Infiniti G35 or any other use of the letter M. The court found Nissan’s use of the letter M in 2005 and the descriptor M6 created a likelihood of confusion between the sources of the wares of both BMW and Nissan.

However, BMW was unsuccessful in claiming Nissan was liable for infringement and depreciation of goodwill under sections 20 and 22 of the Act. The judge felt that Nissan did not infringe BMW’s registered trade-marks M3, M5 and M and design after numerous witnesses were able to distinguish the marks. The witnesses’ initial inference did not create any lingering confusion with respect to the source of the wares in any sense that would have confused their vehicle purchasing process.

BMW’s goodwill was not significantly affected.

A large factor in the decision was the perspective the judge took in assessing the likelihood of a “mistaken inference.” He did not take the perspective of a casual consumer somewhat in a hurry.

Rather, he considered the process as the buyer of a luxury, high-performance vehicle. The latter considers many more details and is more systematic in the buying process than the hurried buyer with an imperfect recollection of details.

In other words, trade-marks can be more alike for luxury cars than for breakfast cereal.

The case is under appeal. No doubt the appeal will see both parties suggesting the different results under the two different sections are difficult to rationalize — but, of course, each picking a different one to support.

The partial judgment and order in favour of BMW has been stayed pending the appeal.

The connection between these 2 topics is the dubious distinction of creating head-scratching copyright issues.

Howard Knopf points out in his Excess Copyright blog an article from the Globe that talks about the over the top copyright claims of Harry Potter’s Canadian distributor. One can understand the desire of the publisher to keep the book under wraps until the official launch without any leaked details. Its all about hype, marketing, demand, and fan frenzy after all. It seems that the distributor has suggested that copyright law protects the confidentiality of the contents of a book until the author’s chosen release date. That’s clearly not a correct copyright principle. It may however be a breach of express written confidentiality provisions within the distribution chain, depending on how it was leaked.

Michael Geist reports that the Canadian Copyright Board has issued a decision that supports the addition of the private copying levy to iPods or indeed any elecronic device capable of copying music (aka computers, phones, memory cards, thumb drives, hard drives …). That’s despite a Federal Court ruling a while back that the Copyright Act did not intend for the levy to be on digital audio recorders. We have not heard the last of this one. Michael points out some of the issues this raises. Certainly more fodder for debate on the download/copying/fair dealing/copyright reform issue. (The numerous comments on Michael’s post attests to that.)

Read Howard’s post

Read Michael’s post

Michael Geist mentions a CRIA press release about a Toronto police raid that resulted in criminal charges for counterfeiting of movies, music, video games, electronic equipment, and clothing.. This is a good thing. Michael points out though the puzzling position of CRIA that this successfull arrest means our laws need to be tougher.

Read Michael’s post

I recently wrote articles talking about the need to create a culture of privacy, and some counter arguments to the “what’s the problem if you’ve got nothing to hide” comment on being watched. Slashdot has pointed to a couple of articles relevant to those topics.

The first is a paper called ‘I’ve Got Nothing to Hide’ and Other Misunderstandings of Privacy by Professor Daniel J. Solove of the George Washington University Law School.

The second is an article in Scientific American called Privacy Isn’t Dead, or At Least It Shouldn’t Be where Carnegie Mellon computer scientist Latanya Sweeney states that computer scientists should be trained to consider the privacy, user, and social side of what they do.

For the London Free Press – July 16, 2007

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UPDATE: This post was reproduced on the ITManagers blog and received some positive comments.

When negotiating an agreement for the purchase of goods or services, some buyers try to get the vendor down to the lowest possible price. That may not be the best approach, however, because it can affect the quality of services you receive and may end up costing more.

Sometimes the saying “you get what you pay for” is true. Often getting a reasonable price is better than getting the lowest price.

This is especially true for anything requiring ongoing work. It applies to virtually any service, from office cleaning to equipment repair. Let’s use a major software installation as an example.

You enter into an agreement with a vendor to purchase a new system that might include various pieces of software, hardware, training, installation and implementation, project management and ongoing maintenance.

If you grind the price down so far that it leaves little or no margin for the vendor, the vendor will be inclined to spend as little time as possible performing the services.

To make a profit, the vendor naturally will try to limit his costs by cutting corners. He may not be attentive to project details or buyer needs. He also will be more likely to provide the bare minimum services required by the deal and strictly construe its obligations in the agreement. The vendor will be less inclined to do extra work that comes up throughout the project without insisting on a further fee.

For example, training may be cut short, not enough attention might be paid to managing the project, and response times for service might be slow. You may end up doing things the vendor perhaps should have done. The implementation may take longer and have more frustrations than it should. In the end, all these things could cost you more time, frustration — and money.

It essentially becomes difficult to motivate the vendor, which will want to do only the minimum necessary. While having a clear, well-drafted agreement setting out the vendor’s obligations is important, no agreement will help if the vendor is not motivated to perform.

It is often said that an effective negotiation is one in which neither party is 100-per-cent satisfied with the result. That may sound odd, but it is far better for each party to feel it’s getting some value out of the arrangement, including the vendor feeling it will make a fair profit.

On the flip side, if you as a vendor negotiating a sale feel you’re getting badly beaten up over price and don’t like where the deal may be headed, it is sometimes better to end the negotiation than to get into a position where there is no profit in the deal. The natural inclination to do the bare minimum possible, and the lack of motivation may lead to substandard work and damage your reputation.