A Montreal-based open source association has launched a lawsuit against the Quebec government for procuring proprietary software (an upgrade to Vista) without considering open source alternatives.   Ultimately this comes down to whether the Quebec government followed their own procurement rules.   And of course it isn’t as simple as if a commodity like paper was being purchased.  There are a lot of factors to consider when comparing software choices, especially when considering traditional software vs open source.

Take a look at this ITWorld Canada article about it.  I’m quoted in the article. (And yes, I’m in London, not Toronto.)

That’s the title of my post to Slaw today.

It reads:

A recent Techdirt (one of my favourite blogs) post referred to a NY Times article “noting a return to having even software and internet developers practice building physical things as well, in part just to get them to start thinking outside the (computer) box when thinking about how to design digital things. Think of it as cross-training for the digital developers mind.”

The article gives several examples of tech companies having workshops for its employess where they create things in the physical world.

“At Stanford, the rediscovery of human hands arose partly from the frustration of engineering, architecture and design professors who realized that their best students had never taken apart a bicycle or built a model airplane. For much the same reason, the Massachusetts Institute of Technology offers a class, “How to Make (Almost) Anything,” which emphasizes learning to use physical tools effectively.”

How many of us have either used something or tried to repair something – and mused that if the person that designed it was forced to use or fix it, it would be designed differently? I’ve often thought things would be designed much differently if the designers were required to use and repair what they create.

There is a lesson in here for lawyers as well.

Its fairly easy to throw the usual precedent or a typical solution at a client. What makes a better lawyer, though, is to take the time to put yourself in your client’s position, and ask the right questions. Think about how that document or solution will be actually used, and how it will be received by the client’s customers or whomever the document or solution affects.

Perhaps Steve Jobs’ Apple philosophy works for lawyers as well. Build our products so they look good, are easy to use, include the features that clients want and need, and leave out a lot of the typical stuff that many think are needed but perhaps really are not

That’s the title of a Techdirt post that points out that as technology and markets change, sellers of affected products need to take a close look at their business model.  Figure out what your market really is.  And if the product you have been selling is no longer scarce, then figure out what new scarcities the change has created, and sell that.   Examples are buggy manufacturers at the dawn of the auto, and the music business.

That has been true ever since the dawn of technology and markets.  Often easier said than done though.  One hint – if you start thinking that you need to have legislators change laws to protect your market, or feel the need to launch lawsuits against massive numbers of people – it may be time to reflect on this.

Read the Techdirt post

For the London Free Press – August 25, 2008

Read this on Canoe

That’s the title of my post on Slaw today.  It reads as follows:

Two articles this week take apparently opposite views on this – although on reflection both probably just say that there are factors that can prevent technology from helping. I think the save us viewpoint wins out in the end.

Chris Anderson of Wired wrote an article in Newsweek entitled Why Technology Hasn’t Saved Us From Inflation (but still can). It essentially says that technology could have prevented our current problems with energy, the environment, and the economy – but political issues got in the way.

Shelly Palmer wrote a post entitled How Technology Is Costing Companies Millions . . . Maybe Billions . It chronicles an experience with a call centre over a customer loyalty program where a seemingly simple request was met with unthinking humans who could only read canned answers off a script, and a system that apparently could not do a simple task. The experience undid years of goodwill.

Both articles are worth a read. I’ve always been a believer in technology – but also that poorly applied technology can do more harm than good. Too often it is designed and implemented with an inward, rather than customer or user centric focus. The call centre story is a perfect example of that

Boing Boing refers to a Wall Street Journal article that says all corporate logos and names are being covered up with tape at Beijing Olympic facilities.  Any name or logo other than those of official paid sponsors are being covered – on virtually everything, including thermostats, fire extinguishers, faucets, and elevators.

And if someone removes the tape, it is replaced by workers specifically assigned to tape replacement.

I understand that paid sponsors have to get something for the vast sums they pay for sponsorship, but to me this crosses the silly barrier.

Read the Boing Boing post

Read the Wall Street Journal article

For the London Free Press – August 18, 2008

Read this on Canoe

In a decision that has been termed a “crucial victory” and a “knockout decision,” a New York District Judge ruled that EBay was not responsible for policing and enforcing trade-mark infringement of goods posted for sale on the website. That decision is a radical departure from recent European decisions in France and Germany. The District Court Judge ruled that plaintiff Tiffany & Co. was responsible for policing and protecting its own trademark.

Therefore, host sites such as EBay are not responsible to police and review all goods placed for sale on its site.

As recently as June of this year, European courts have ruled in a drastically different way. In France, a French Tribunal ruled that EBay failed to effectively protect trade-marks such as Dior and Louis Vuitton, proved by the existence of numerous counterfeit items on EBay’s French website. In this case, EBay was ordered to pay an astounding US$61 million in damages.

In April, a German court set the European precedent when it ruled that EBay must protect against the sale of fake Rolex watches posted for sale on its website. The prevailing European attitude seems then to be that EBay must take responsibility for protecting trade-marked products and effectively stomp out the sale of counterfeit goods.

The New York District Court however did not agree with that logic. Although EBay does remove counterfeit items once it is notified by Tiffany & Co. that trade-mark infringement has occurred, the U.S. District Judge ruled:

“. . . the law is clear: it is the trade-mark owner’s burden to police its mark, and companies like EBay cannot be held liable for trade-mark infringement based solely on their generalized knowledge that trade-mark infringement might be occurring on their websites.”

Therefore, in the U.S., EBay cannot be held “pre-emptively” responsible for trade-mark infringement just because some of its sellers are advertising and selling fake goods. Prevalent public policy in the U.S., now recognized by the courts, instead puts the responsibility onto the trade-mark owner, most often the giant manufacturers.

EBay was also found to have acted responsibly in the past when faced with issues of trade-mark infringement. When trade-mark owners had issued concerns about possible infringement, EBay took all possible steps to remove the goods from its site. It also provides trade-mark holders with the software tools to search for possible counterfeit items.

Although this is a step in the right direction for trade-mark law, in the closely related area of copyright law, the decision has yet to appear as bright-lined. In the on-going litigation surrounding the lawsuit of Google/YouTube by Viacom for copyright infringement, the courts have yet to reach a definitive answer.

The potential of host-site liability for copyright infringement is therefore still undecided.

Tiffany has announced that it will appeal this decision. Hopefully the appeal court will agree with the trial court.

And hopefully the court deciding the Google/YouTube copyright issue will look back to the reasoning in the EBay case and see that holding host-site responsible for copyright infringement review and enforcement makes as little sense as it did for trade-mark infringement.

Techstuff Canada has a post that says the guys that created Scrabulous made a mistake when they renamed their game Wordscraper after the real Scrabble owner shut them down.

The posts states:

 ”I’ll add just one observation: I think Wordscraper is a terrible name. As John Dvorak observed recently on TWiT, newspapers loved this story because “Scrabulous” is a fun word.” 

and goes on to say that: 

I think the brothers could have bought themselves a lot of goodwill — and more positive press — if they had gone with a new name that’s more fun (and sillier) than Wordscraper.   A name like Melvin, for example.

That’s a very good point.  Good trade-marks or brands need to be memorable, not descriptive.  

Unfortunately descriptive trade-marks are the first thing most people think of.  The thought process is: “how else is anyone going to know what my brand/product/service is?”    The right thought process is: “how can I make people remember my brand/product/service?”

Read the Techstuff post

I don’t think I have mentioned that I am now a regular contributor to Slaw, which describes itself as  “a cooperative Canadian weblog on things legal”.  I will be posting there every Wednesday.  I have followed Slaw for some time, and was pleased to be invited to contribute.  It is unique in that it has many contributors from different areas within the legal arena, covering topics ranging from substantive law to legal research to legal technology to questions about how we practice law. 

Are bloggers journalists is the title of a post I just made to Slaw.  Take a look.  It reads as follows:

We are all publishers now, but are bloggers journalists? Frankly, I don’t think so, and I don’t pretend to be a journalist (even though I have been writing a weekly newspaper column for several years) – although the issue has been subject to some debate.

Wikipedia defines a journalist as: “a person who practises journalism, the gathering and dissemination of information about current events, trends, issues and people.” – although it defines journalism as “the profession of writing or communicating, formally employed by publications and broadcasters, for the benefit of a particular community of people.”

Bloggers are often treated as journalists though. For example, we often receive emails from vendors of various wares and services hoping that we will write about them.

For example, within the last few days, I received an email about a new website called Litireviews that “collects published independent legal software and technology reviews“. The email asked me to “Please take a minute and check it out. If you think it appropriate, please let the readers of E Legal know about it.”

I also received an email inviting me to join Lawlink, stating “LawLink is the first and largest social network exclusively for attorneys in the United States. On August 7, 2008, LawLink opened its doors to attorneys in Canada. Over 4,000 US attorneys have joined LawLink.”

I joined it, but have yet to do anything with it. Frankly I’m suffering a bit from social network fatigue. There just seems to be too many of them, which collectively take too much time to manage.

Michael Geist points out that Bell’s expandable PVR that adds an external hard drive for more storage would run afoul of bill C-6.   C-61 allows time-shifting, but not archiving.

Another example of vacuum tube politicians in a microchip age.

Read Michael’s post