The Supreme Court of Canada just released a decision in R v Gomboc  that dealt with whether the use of a device to measure electricity consumption at a suspected grow-op without a warrant (its purpose was to form the basis to get a warrant) was proper.

The court held that is was acceptable.  The case is not as helpful as it might be for precedent value though, as it hinged on specific Alberta regulations, and the reasons for judgment were split.  Some of the judges felt there was no reasonable expectation of privacy – while some felt there was, but that the regulation overrode that expectation.

For more detail, see commentary by David Fraser, Brian Bowman, and on the Canadian Technology & IP Law blog.

For the London Free Press – November 29, 2010

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It’s important to document your intentions before any code is created

It is not unusual for a business to hire someone to create computer code, such as a specialized program, website, or iPhone app.

It’s important to agree in writing who owns what’s created. Many people don’t realize that with nothing in writing saying the person who commissioned it owns it, the creator owns it.

Problems can result later if the intended ownership is not documented at the outset.

On the other hand, people sometimes get too hung up on ownership. It is not unusual for two parties each to want to own the same software.

For example, code creators often reuse existing code to create parts of their end product. It doesn’t work for the buyer of the end product to own everything in it to the exclusion of the creator. At the same time, the buyer may want to own the product as a whole, and not want the creator to reuse or resell it.

The buyer may feel that it paid for it, and the creator shouldn’t otherwise profit from it. The creator may feel that since the buyer got the benefit of existing code, it’s not right to deny others the benefit of parts of the new code. And too many restrictions on the creator can limit its ability to provide services to others.

To some extent, it depends on the novelty of the code, its intended use and competitive value. The buyer may not want competitors to use the new software. And if the whole idea is to create a product for the buyer to exploit commercially, it makes no sense for the creator to be able to do that as well.

Often, the focus should be less on who owns the software, and more about what the parties can do with it. At very least, considering the issue in that light will help sort out ownership.

The parties should think about what they need to do with the product and its parts and what they do and don’t want the other to do with them.

Sometimes, the issue can be resolved by creating broad licence rights, and perhaps restricting what the other party can do. For example, the buyer might get a licence letting it do whatever it wants with the product internally, but not sell it to anyone else.

But the time to deal with and document this issue is before the work starts. The longer it waits after that, the more difficult it becomes to reach consensus and document the result.

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

Several sources are reporting that a Chinese company called MIC Gadget has stopped selling their Steve Jobs action figure after receiving a nastygram from Apple’s lawyers stating that it violated Apple trademarks and copyrights.   See  for example Mobiledia, MacLife, Mashable.

This image is from the MIC store.

I get that companies need to police their brands – but lets think about this for a minute.

Its not as if this in practice causes any harm to Apple or Steve Jobs or confusion about their brand.  It doesn’t put Steve or Apple in any bad light- in fact, it’s a good likeness.  And it sold quickly, so there is demand for it.

Steve and Apple are not desperate for any extra publicity, or any extra income.  But instead of shutting them down – what if they struck a deal to pay a royalty on each one, and to sell them in Apple stores – and then Apple donate its income from this to charity?

If Apple wanted to tweak the design a bit – such as the improper way he holds the phone – or to do some diligence to make sure it doesn’t have any problems such as lead paint, I’ll bet MIC would have gladly co-operated.

For the London Free Press – November 22, 2010

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Traditionally, they have been reserved for inventions that are tangible

The recent Federal Court of Canada decision in Amazon.com Inc v. the Attorney General of Canada held that a “business method” can be patented in Canada.

This essentially allows an idea, without an actual physical manifestation, to be patented if the right tests are met. The Federal Court in Amazon overturned the previous ruling by the Commissioner of Patents that rejected Amazon’s efforts to patent a business method.

Patents have been traditionally granted for tangible inventions. In other words, they can be held in your hand or touched. Business methods are an intangible process.

“Business method” patents (BMPs) are a class of patents covering new methods of conducting business. For example, in the Amazon decision, Amazon sought to patent single-click online ordering as a proprietary invention.

“One-click ordering” allows users to make online purchases with a single click of the mouse, the payment information having already being entered by the user. The result is that users do not need to enter billing and shipping information every time a purchase is made; the information is entered once and future purchases require only one click to complete the check-out.

Amazon obtained a U.S. patent for the 1-click method years ago.

According to patent agent Natalie Raffoul, the reasoning and final decision in Amazon follow closely that of the leading U.S. case, re Bilski. Ms. Raffoul pointed out similar to Amazon, the U.S. Supreme Court in re Bilski decided an abstract idea is not patentable; so the business method in question must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing.

Business method patents have been controversial in both Canada and the U.S. They aren’t typical in that they do not attach to a tangible item but instead to a more abstract idea or process. Detractors have used this to support the claim that they should not be allowable under patent law. Critics have also voiced concern about the implications to start-up businesses.

In Amazon, Justice Phelan held the appropriate test to identify a business method patent is the test set out in the Progressive Games Inc. v. Canada (Commissioner of Patents) decision: 1) there must be a practical application; 2) it must be a method of applying skill and knowledge and; 3) it must have a commercially useful result.

Justice Phelan decided Amazon’s single-click ordering met these criteria and was a tangible new business method, not simply a scheme or abstract idea, which was put into action through the use of cookies, computers, the Internet and the customer’s own action.

The Amazon decision signals a divergence from the old process in Canada as it is the first case to recognize business method patents are patentable. The case bears watching because the decision has been appealed and could be overturned.

The annual DIG conference is this Thursday and Friday at the London Convention Centre.  It’s a must attend conference for anyone in the gaming industry.  Harrison Pensa is pleased to be a sponsor of the conference – we are  sponsoring the  networking reception that precedes the VIP dinner on Thrusday.  Hope to see you there.

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

I gave a presentation this morning on social media issues at a TechAlliance breakfast club event.  Thought I would share this one slide.

If someone posts something about you or your organization that you don’t like, it’s best to so some sober reflection to consider the best response.  Sometimes attempts to suppress things on the internet can backfire and bring more attention to it.  It’s called the Streisand effect.

For example, you might be better off ignoring it if the comment is on an obscure place few will see, or if the person who posted it is clearly a lunatic.

If they are right and you actually did do something wrong, you may want to post an apology.

If they simply have their facts wrong, you might politely set the record straight.

Consider if there is a way to turn what was said or done to your advantage.

If a legal response is necessary, it must be drafted very carefully with the assumption that it will be posted and ridiculed.  The traditional throw in every specious claim and intimidate the recipient into stopping approach may not be the most effective.

For the London Free Press – November 8, 2010

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Security: New report uncovers substantial deficiencies in protection by numerous federal agencies

When it comes to the protection of privacy, Canada’s federal agencies have some serious changes to make.

In its 2009-2010 annual report on the Privacy Act, Canada’s Office of the Privacy Commissioner exposed significant deficiencies in privacy protection by a slew of federal agencies.

The privacy commissioner examined five major federal entities, and found none of them had fully assessed the threats and risks inherent in using wireless communication.

Though most afforded the recommended level of encryption, only three of them required strong password protection for smart phones, and none insisted that data stored on the phones be encrypted. Certain entities were also found to have inadequate encryption for wi-fi networks.

There were weaknesses in the management of surplus mobile devices. The privacy commissioner found only one of the organizations could demonstrate all phones were wiped of data before being sent for disposal.

Additional deficiencies were exposed in the area of disposal of personal information.

Though satisfactory policies and procedural rules were in place for the disposal of paper documents and surplus technology, the practical implementation of the policies was deficient.

Tests on surplus computers donated by 31 federal agencies to Canadian schools revealed 90% of the computers had not been thoroughly wiped of data. Confidential, highly sensitive and even classified data remained on many of the computers.

The report also highlighted some key investigations into inappropriate disclosures of personal information from 2009-2010.

As a result of both faulty procedures and deliberate malfeasance, federal agencies wrongfully exposed personal information on numerous occasions.

On Wednesday November 10 I will discuss social media issues at a TechAlliance Breakfast Club event entitled Developing a Social Media Policy for your Business. 

I’ll talk about:

• The legal traps of Social Media use.
• That fuzzy line between work and personal account posts.
• How to respond to negative social media.
• How a social media policy can help you.

I’ll also create a sample social media policy using an online tool based on audience input.

For the record, my position on social media is not to exaggerate the theoretical dangers or suggest it should be suppressed in the workplace.  But there are a few things that should be kept in mind to reduce the legal and business risks that arise from it.

Hope to see you there.

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

Those who practice in the IT area have a lot of potential new law to digest.  The Federal government has several bills in various stages that will affect many businesses and organizations, and all of us as consumers.  These bills have been mentioned on Slaw, but I thought it was worthwhile listing them all in one place. 

Bill C-28    Fighting Internet and Wireless Spam Act.  

This bill brings in several anti-spam measures.  While this is welcome by most people, the language has the possibility to affect how typical businesses communicate.  Things that we may not consider to be spam might get caught by the act.  Since the penalties are significant, we will have to take a close look at this before it is in force to understand what it means for a typical business or organization. 

Bill C-29     An Act to amend the Personal Information Protection and Electronic Documents Act

This would make several amendments to PIPEDA.  Most of the amendments were expected, and are welcome as they address issues that have arisen from the current legislation.  There are a couple of new parts that could use some clarity, though.  Language that attempts to clarify what “lawful authority” is that allows one to release information to law enforcement doesn’t really seem to clarify what the threshold of proof is, or what to ask for.  It also contains language that requires notification of breaches in certain circumstances to both the privacy commissioner and the affected individuals.  The language has threshold tests – which on the surface are not as clear as they might be.   If this language stays, it may take a privacy commissioner decision and/or court decision to clarify the threshold.  The best source for more information is David Fraser’s blog

Bill C-32     Copyright Modernization Act.

This is the latest of several attempts over the years to amend the Copyright Act.  Controversial elements include digital lock provisions that will allow publishers to trump user rights.  There has been a lot written about this, including a book entitled From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda written by several copyright experts. The best source for more information about the bill is Michael Geist’s blog.

Bill C-51     An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act aka Investigative Powers for the 21st Century Act. 

There also appears to be at least one companion bill, C-52.  This is the latest incarnation of what has been dubbed a “lawful access” bill.   The bill essentially tries to give law enforcement more access to electronic communications.    Critics refer to the bills as “awful access”, and point to the erosion of privacy and the costs ISP’s will need to spend.  They also question the practical effectiveness of the measures.   This bill is hot off the press, and I have not had time to look at it – but in general I fall into the ”awful access” camp.  Expect more commentary on this from both Michael and David.