A bill has been introduced that is intended to cut down on email spam originating from Canada.  I’ll have more to say about this later – but for now, here are some links to commentary by Michael Geist.  Michael’s thoughts on the bill are worth a look as he was on a task force a few years ago that studied spam.

Here, and here, and here, and here

For the London Free Press – April 27, 2009

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The official filing/registration fees for CTM trade-marks is being lowered by 40%.   A CTM is 1 trade-mark application that gets it registered in all EU countries.   Considering the number of countries that entails, the cost to register a CTM is quite reasonable.

A BC NDP candidate just dropped out of the election because of some racy photos on his Facebook page.

Mike Masnick of Techdirt points out that he had a post 3 years ago that suggested this might happen based on an article I wrote at the time.

Mike comments that we have not yet reached the point where such “youthful indiscretions” posted on the web are ignored.

The dividing line between “youthful indiscretions” and something serious enough to impair one’s career is very subjective.  It moves with the type of thing one is applying/running for, the entity one will be working for, and the person/people who are making the decision or evaluating the individual.

It might be interesting to track this over time to see if we become more tolerant of indiscretions posted on the web, and the nature of the indescretions that are tolerated and not tolerated.

Perhaps someone should start a wiki and track the “social network indiscretion index”, or “SNII”.  (Now there’s an acronym for a Wired magazine bit. )

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

Recent Slaw posts talk about Blackberry’s, the ABA Techshow, social media, online ADR, and online legal resources. Richard Susskind talks about how technology is fundamentally changing the practice of law, and how we will provide services in the future. One point he makes is that this is not a big bang change, but a creeping change.

That’s quite true. As I think back, I entered law school after being a computer science major. That was before computers were used in law firms (except perhaps for accounting purposes), and before the Internet. At the time, most people thought it was truly strange to go from computer science into law. There was absolutely no perceived connection between the two.

Fast forward to today. My practice focuses primarily on technology companies and technology issues. The tools I rely upon every day didn’t exist then. The concept of communication through a blog wasn’t even on the radar screen a few years ago – let alone the topics listed above being relevant to lawyers.

I knew back then that technology was going to lead to fundamental changes in the way business was done, and the way we communicate. In hindsight I wish I had taken those thoughts further at the time – but then I guess its never too late to do that.

Michael Geist and Boing Boing both point to a Norwegian study that shows that people who tend to download more music also tend to buy more.  They point out that this is consistent with a previous Canadian study.

For the London Free Press – April 20, 2009

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In recent years, there has been a struggle between the right to privacy and the right to disclosure of information in criminal and civil court actions. The courts have not been consistent in their approach.

When dealing with people such as child pornography offenders, it is easy to conclude that the accused’s privacy rights should not stand in the way of disclosure of information relating to web use.

And it’s hard to argue that something one puts on their Facebook page for everyone to see, which contradicts a position they take in litigation, should not be used in court.

However, other situations are not so clear.

On one hand, court procedural rules generally contain a duty to disclose all documents relating to relevant issues that are or have been in the party’s control. The principle is that fair and efficient resolution requires the parties to be fully aware of all relevant information.

On the other hand, public policy dictates there should be a reasonable expectation of privacy when people make anonymous statements or comments that they would not normally make without the expectation of privacy.

Under the Personal Information Protection and Electronic Documents Act, Internet service providers and web hosts are, for the most part, not entitled to disclose personal information without customer consent or a court order.

And it makes a difference whether the disclosure request is to a party to the litigation, or an unrelated third party.

In the 2000 Irwin Toy Ltd. vs Doe decision, the Ontario Superior Court of Justice found that a plaintiff must establish a prima facie case before the court would order disclosure. That means that, “at first glance,” the request for disclosure has some legitimate merit.

The reasoning is that a person shouldn’t be able to start a lawsuit against someone without any merit and require that the identity of an anonymous person be compromised.

However, in 2005, in the copyright infringement file-sharing case of BMG vs John Doe, the Federal Court of Appeal stated that disclosure of IP addresses would be required where the party seeking the disclosure had demonstrated a bona fide case.

That is a lower threshold than establishing a prima facie case. It simply requires that the request for disclosure has been brought in “good faith” and there is no consideration of merit.

The court did not, however, order disclosure because the plaintiff had failed to limit the information requested to relevant issues.

But in the recent decision of Warman vs Wilkins-Fournier, the Ontario Superior Court of Justice ordered disclosure without requiring the plaintiff to establish a prima facie or even a bona fide case.

The court ordered the defendant website owner release information that would help ascertain the identity of eight other “John Doe” defendants who were anonymous posters on a particular website.

These decisions can be technically distinguished from one another based upon subtle nuances between different rules and whether the disclosure was sought from a non-party or a party to the action, but the general concepts are similar.

We remain hopeful that there eventually will be a court of appeal decision that will help by providing some general guidelines that balance disclosure with privacy.

This years’s TechAlliance AGM and Power Breakfast features Jim Carroll as speaker.

Here’s the press release:

We all hear about web sites that simply take the content of others and post it as if it is their own – usually to try to make money off ads.   They add no original comment or commentary.  They are commonly referred to as “scraper sites“.  Sometimes they give attribution to the original site and/or author – sometimes they don’t.   Those who publish blogs and use tools like Google persistent search to see where their names show up sometimes find parts of their material in odd places.

Here’s an example.   I wrote a few days ago about a Google adwords case.  Mike Masnick of Techdirt commented on my post in one of his.

Take a look at the comments on my post.  Note that the 2nd and 3rd ones are from sites that simply lifted Mike’s post off Techdirt. 

And yes, I do note the irony that by posting this I’m actually bringing more attention to those sites.

For the London Free Press

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TECHNOLOGY: Storing or sharing personal information on remote computers controlled by others is a common practice fraught with potential problems

Cloud computing is touted as the solution to many users’ problems — but is cloud computing itself a problem?

Cloud computing is not bad per se. But users must consider how they are using the technology, and whether contractually or practically, it provides them with enough control over their information.

Cloud computing has been a hot topic in recent months, stirring up strong feelings both from those who support the technology and those who distrust it.

In September 2008, Ontario Privacy Commissioner Ann Cavoukian weighed in on this issue in the white paper Privacy in the Clouds, which we discussed in a previous column (see canton.elegal.ca/ 2008/09/29/cloud-computing-presents-real-concerns-over-privacy-issues).

More recently, the World Privacy Forum released a report entitled Privacy in the Clouds: Risks to Privacy and Confidentiality from Cloud Computing. It echoed Cavoukian’s concerns and found that, though the technology is not inherently bad, individual users must be conscious of the potential security and privacy implications and protect themselves accordingly.

The forum attempts to define cloud computing — a concept that almost defies definition — this way: “Cloud computing involves the sharing or storage by users of their own information on remote servers owned or operated by others and accessed through the Internet or other connections.”

The forum emphasizes the far-reaching implications of cloud computing, which can be used for data-storage sites, video sites, tax-preparation sites, social-networking sites, photography sites and personal health record sites.

The danger of cloud computing comes from the digital footprints that individuals users may leave on the Internet with no idea of how that information is policed, used and distributed.

Various online activities, from sending e-mails and playing games to managing bank accounts and meeting people on social-networking sites, require people to fill out forms and provide personal information. This information can identify the individual and serve as a digital history of everywhere that person has been.

The forum report’s clear underlying message is that users must be diligent in understanding terms of service, how disclosing information to a cloud provider changes their privacy and confidentially rights in that information, and how remotely stored information may not have the legal protection it should have.

The forum also found many legal uncertainties that make it, “difficult to assess the status of information in the cloud as well as the privacy and confidentiality protections available to users.”

The report even suggests, “sharing information with a cloud provider may undermine legally recognized evidentiary privileges.”

Ultimately, the decision to use cloud computing is one each user will have to make, keeping in mind what they are using it for, how important their mission is, how sensitive the information is, who has it, and whether they can keep local copies of it.