Law


Continuing my attempts to bring Shakespeare into as many posts as I can….

Let specialties be therefore drawn between us,
That covenants may be kept on either hand.

(Taming of the Shrew  II. i. 127-8)

A couple of weeks ago, I presented at the HR Technology Conference in Chicago, the topic being SaaS Contracts:  how not to get ripped off.  I made an animation to start the presentation, as talking about contracts can be a bit dry.

 

If the embedded version doesn’t behave,  watch it here.    My goal was to show the naivete of the typical buyer when dealing with a smooth salesperson. In the space of about 2 minutes, the buyer makes at least 9 major blunders. See if you can spot them. It is supposed to be funny, but I’ll let you be the judge of that.

A week or so after the event I did a podcast  on the Bill Kutik Radio Show, where I go into a bit more detail.  Have a listen here.  I’m not a lawyer, so this doesn’t constitute legal advice, but I’m saddened by the ignorance on the side of the buyer, and the willingness of the seller to exploit that. That is business, I guess.

Or as Camillo said in   The Winter’s tale:

You pay a great deal too dear for what’s given freely.

Also we have a lot of research on how to buy cloud/SaaS solutions.  Gartner clients should definitely check out Alexa Bona’s  research. Whether buying or selling, getting a fair contract is best in the long run.

(I’m very impressed with the Xtranormal tool for animation. I checked with their legal folks on usage, what a pleasure to deal with them).

Thomas Paine, “It is error only, and not truth, that shrinks from inquiry.”

George Washington, “Truth will ultimately prevail where there is pains to bring it to light.”
Julian Assange,  “The more secretive or unjust an organization is, the more leaks induce fear and paranoia in its leadership and planning coterie.”

Antonio Gramsci, “To tell the truth is revolutionary.”  

Herbert Marcuse, “The need for alternative media has never been more acute."

Rosa Luxemburg, “Those who do not move, do not notice their chains.”

Julian Assange,  “A man in chains knows he should have acted sooner for his ability to influence the actions of the state is near its end.”

Ronald Reagan, “Information is the oxygen of the modern age. It seeps through the walls topped by barbed wire, it wafts across the electrified borders.”

Long ago, I studied political philosophy, and this wikileaks thing has stirred some parts of my brain that have not stirred over a decades.  Incoherence may follow.

I’m posting this on my personal blog, rather than the work one. These are my personal views, and should not be construed as anything other than that. Wikileaks has significant implications for enterprise software, but I’ll largely leave that to my colleagues for now.  

My view

Wikileaks is one of the best things that has happened to state and corporate governance,  since, gosh, Juvenal posed the Quis custodiet ipsos custodes? question.  Wikileaks challenges Plato’s Nobile Lie, big time. I reckon Karl Popper would have applauded wikileaks.  Hannah Arendt too, but I’m on thinner ice there.

Julian Assange and his colleagues have firmly established the concept of a safe place for whistleblowers to dump information.  They deserve  lauding, not opprobrium. Some Americans think wikileaks is picking on the US, but if you look at the previous leaks, there were many that were dealing with other countries and issues.   Look at the cases of toxic dumping in Africa, Swiss Bank tax evasion, Oil pollution in South America.    Wikilinks didn’t hack the system, or steal a password. Someone, probably Manning, gave them the information.

Assange’s paper here is well worth reading, it would be good if he wrote more, as he writes well.  See also  Zunguzungu’s post, where I found the link.

Check out Ginandtacos too.

Nuclear codes are a matter of national security. This crap isn’t. The "secrets" betrayed by this diplomatic cable dump range from the gossipy ("Prime Minister so-and-so has too much plastic surgery and a drinking problem!") to the "Are you kidding? Everyone already knows that!" variety. The Russian mafia is intertwined with the government? My word! That is simply shocking. The effect of the most recent information dump is not, as Obama and Hillary have so idiotically warned, that "lives will be lost." This isn’t blowing the cover of any double agents in the Kremlin. This is just making the government look stupid. If you think "We don’t want to be embarrassed" is a sufficient reason for the government to withhold information about its activities from the public, you have a very curious understanding of how this country is supposed to work.

And so in an era in which people get their real news from a comedian and their comedy from the real news, a non-state actor like Wikileaks represents our best hope for a more democratic state.

 

A more diplomatic view

I rather liked this piece on the Harvard blog, from a former diplomat.

Governments are no doubt rushing to secure their data and hold it more tightly than ever, but the horse has bolted. If a government as professional, technically sophisticated, and well-protected as the U.S. can suffer a breach of this magnitude, no government is safe. Politicians can roar their demands for the prosecution of Julian Assange or — absurdly — that Wikileaks be designated as a terrorist organization, but the rage is in truth a tacit admission that government’s monopoly on its own information is now a thing of the past.

The call by some of the American right to treat wikileaks as a terrorist organization smacks of paranoia.  Palin’s call to treat Assange like the Taliban is beyond despicable. Rule of law, please. 

My position mirrors that of the ACLU

We’re deeply skeptical that prosecuting WikiLeaks would be constitutional, or a good idea. The courts have made clear that the First Amendment protects independent third parties who publish classified information. Prosecuting WikiLeaks would be no different from prosecuting the media outlets that also published classified documents. If newspapers could be held criminally liable for publishing leaked information about government practices, we might never have found out about the CIA’s secret prisons or the government spying on innocent Americans. Prosecuting publishers of classified information threatens investigative journalism that is necessary to an informed public debate about government conduct, and that is an unthinkable outcome.

The broader lesson of the WikiLeaks phenomenon is that President Obama should recommit to the ideals of transparency he invoked at the beginning of his presidency. The American public should not have to depend on leaks to the news media and on whistleblowers to know what the government is up to.

This morning’s report that Amazon has ditched hosting wikileaks raises questions about censorship and coercion. This is definitely not cloud computing’s finest hour. It reeks of hypocrisy.  We expect Google and Yahoo to stand up to China, but Amazon seems to fold at the first mumble from a senator.  Which T&C did Wikileaks not follow?   I will not be shopping at Amazon this Christmas.

Think for a moment of the alternative scenario, the disgruntled operative handing it over to a foreign power, as per  Gordievsky, Blunt or Ames.  Instead, it is exposed to us all, we can make up our own minds.  Rather than lashing out at wikileaks  consider where the data would have gone in its absence. 

Shout out to the Guardian, Spiegel and the NYT.

Many have predicted the end of journalism.  This week the Guardian in particular has done much to dispel that in my mind. Its coverage of the wikileaks story has been thorough, careful, and brave.   Also the NYT nailed it here.

News organizations are in the business of publishing news. They can exercise their judgment with regard to whether, in exceptional circumstances — usually those regarding potential loss of life — news might be redacted, delayed or, on extremely rare occasions, permanently withheld. But the likely embarrassment to individuals, or inconvenience to U.S. diplomats, does not even begin to approach this bar.

When 250,000 documents can be placed on a zip drive smaller than a popsicle stick, and thousands of citizen journalists are working to make it available to the public, then the guarantee of secrecy for any powerful institution is only a comforting fiction.

 

Process and a bit about the software angle

There will be a lot of organizations rethinking security policies, systems and practices,  in the wake of this incident, and rightly so.  A junior level staffer should not have been able to download what he did without some sort of alarm bell ringing.

Software vendors are going to view this as the next Sarbanes-Oxley. Cry havoc and let slip the dogs of marketing.  Do make sure you have a good supply of anti-hype pills.

I hope though, that it also makes organizations, whether government or otherwise, realise that they are being watched by broader society. Behave ethically, conspire less  and you have little to fear from wikileaks. 

Perhaps wikileaks  will continue to thrive with Assange at its head, but if not, an alternative leader or offering will emerge, as with Napster.  Targeting Assange will not make this go away.  I believe Assange should answer to the Swedish charges that he faces, but only through due process in a court of law. 

A Musical coda

I’ll end this with one of my favourite songs. Whispering Grass. From the Ink Spots. This was a hit in 1940.  listen here if you like.  Perhaps it should be the theme tune for wikileaks the movie. 

Why do you whisper, green grass
Why tell the tress what ain’t so
Whispering grass
The trees don’t have to know, no-no
Why tell them all your secrets
Who kissed there long ago

Whispering grass
The trees don’t need to know
Don’t you tell it to the breeze
For she will tell the birds and bees
And everyone will know
Because you told the blabbering trees
Yes, you told them once before
It’s no secret anymore-ore
Why tell them all the old things
They’re buried under the snow

Whispering grass, don’t tell the trees
‘Cause the trees don’t need to know-ow

For the Brits reading this there is the Ain’t half Mum cover too.

Shylock:
Most learned judge, a sentence! Come prepare!

Portia:
Tarry a little, there is something else.
This bond doth give thee here no jot of blood;
The words expressly are "a pound of flesh."

The Merchant of Venice

(painting by Alexandre Canbanel. The Merchant of Venice)

The jury has decided.  SAP owes Oracle 1.3 Billion dollars.  I’ll leave others to speculate on whether SAP appeals, if is a fair sum,  or whether there will be other legal ramifications.  

Watching it all has been fun. Good theatre, with some dramatic performance and and even more dramatic absence.  Tabloid stuff.

  1. The amount, while breaking records  for  copyright infringement,  will not impact SAP’s ability to do business.  It has plenty of cash, and there is a serendipitous symmetry with the recent 1,5 billion dollar credit facility.  While it could slow down share buybacks, I doubt that it will have a real impact on its development or marketing spend. It would be wrong for SAP to shrink into cost cutting mode to fund this, but I don’t think they will anyway. 
  2. The case illustrates the hyper-competitive and ruthless nature of the industry.  Neither firm emerges Persil white from the process.  I’m not sure that it will really make a difference to how CIO’s view SAP or Oracle. Most CIO’s know that this is a pretty ruthless and aggressive business.  Oracle’s field will have a bit of fun in the sales cycle with this, but I doubt it will really impact business.
  3. Most software executives and developers have minimal understanding of copyright law and its implications.  Coming out of this, I’d hope that software developers think a little bit more about intellectual property and IT law generally. This would be a good thing.  I’d like to see software companies funding more IT law research and studies, but then I’m biased.
  4. Software companies using intellectual property to beat each other up in court isn’t new, but this judgment will encourage more of the same.
  5. The judgment was not about the legality of third party maintenance.  The SAP-Oracle case and Rimini Street –Oracle case will be quite different.  I don’t think we should conflate them.  The SAP-Oracle case was good entertainment, but it was just about damages. In the long run the Rimini Street case is more important for the whole industry.  I ‘m not assuming that just because SAP admitted that TomorrowNow was toxic, all third party maintenance is somehow tainted. 

These are my musings, rather than a formal Gartner position.

(Okay, the heading was from Romeo and Juliet, and the quote from Merchant of Venice)

Thinking of strikes, it is easy to imagine coal miners, railway workers and automobile assemblers with shop stewards quoting Trotsky, Gramsci and Marcuse, and brandishing a well worn copy of the Ragged Trousered Philanthropists. This is a naive and foolish stereotype. As this example from Yahoo! shows,  industrial action is alive and well in the high tech industry. Valleywag reported on a strike at Yahoo in France.

[YOUTUBE=http://www.youtube.com/watch?v=kulOZowv0Qc]

(watch the video here if you dont see the embedded player)

Carol Bartz‘s lacerating eccentricity may captivate Silicon Valley, where she’s cutting costs left and right. Not so in Europe: When Yahoo tried to shut down operations in France, workers made this surreal, defiant video. And went on strike, naturally.Their point: Yahoo made about 1 million euros per worker from Yahoo France alone last year, and used to hype how “it’s important to have [locally] concentrated engineering activities… to innovate” in France, where it would base “one of [its] most important centers in Europe.” Yahoo France’s engineers will now stop working until Yahoo agrees that they shouldn’t have to stop working. At least they’re fact checking the internet company’s hype along the way.

(thanks Valleywag).

There is a  lesson for all “global” high tech companies. HR practices that work in the US don’t necessarily travel well. I have quite a bit of research in the pipeline on a related topic. I have seen global HR projects derailed because of worker and union opposition, forcing system redesigns and huge delays.

I’ll predict that the software industry will face increasing collective and industrial action. Social software makes it easier to organize and motivate around an issue, and create a strong collective even without the presence of a union. It makes it easy to reach the broader public too.  We have seen the power of the disgruntled customer using social media to mobilise support and opinion. Employees have access to the same tools and media. Executives of global software companies will need to get a lot more savvy about global HR issues. Gosh, that degree I did in Industrial Relations might actually be useful one day.

Don’t ever give your heart to a stranger
Don’t tell your secrets to a friend
Don’t put your heart in mortal danger -
They all desert you in the end.
The more you live
the more you love.
Or so they say: The more you love
the more you throw it away.
They say that nothing lasts forever

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(photo mine use under cc with attribution)

In 1985, while on hockey tour from South Africa, I visited my cousin in Nottingham. He had an excellent music collection, and he introduced me to all sorts of bands I’d not really heard much of back home in South Africa. I copied several albums with his rather fancy double cassette deck system, including the Flock of Seagulls’ albums. I clearly remember using brand new TDK D-90 cassettes, and carefully copying out the track names. Telecommunication, The More You Live, The More You Love, Remember David, Wishing. Using a new cassette was a sign of respect back then. 

A decade or so later I replaced the tapes by buying AFOS on CD, and I have since bought a few tracks online too.

Last night, in Weinheim, I saw them live in a cosy venue called Cafe Central. I paid 18 euros at the door. The place wasn’t packed, but  a number of folks turned out dressed in 80′s garb, hair and all. There were even a couple of punks. The band looked older, as we all do, and the famous hairdo was pinned back under a baseball cap. The sound was a bit more guitar, base and drums than it was in the 1980′s, but it was fun. Some of the line up had changed, but for about 90 minutes the place rocked. They played the hits and a couple of newer tracks, it was a fine evening. I would have even bought the t-shirt if they’d had one for sale.

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(photo mine use under cc with attribution)

I’m sure that many of us have similar experiences with music, so as parliamentarians in various countries consider draconian 3 strikes and you are out type legislation for file sharing, perhaps they should look at their own musical collections. You could argue that I should have bought the AFOS albums in 1985, but if I remember correctly I had already spent my pocket money on Howard Jones’s Dream into Action

I’m wishing that the parliamentarians would read JP’s post.

Most people are law-abiding. Most people want to make sure that artists are rewarded. Sometimes laws are out of date and need changing. Sometimes business models are out of date and need changing.

I ‘ll leave you with a stanza from Telecommunication, AFOS’ hit song from 1981.

Video screen,
Silver page,
With a new calibration
For the nuclear age.

Super arrangement of Toto’s Africa by the Perpetuum Jazzile.  This rocks. Appeared in my inbox this morning. Thanks Geoff.

Africa is one of those tunes that is part of my mental soundtrack. I hear it and I’m transported back to a humid South African evening, the crickets chirping and the smell of African rain is in the air. Weird, as the band is from LA, and this sort of soft rock normally my thing. But I guess for most of my generation this is a iconic sing along song.  Perpetuum’s performance is really rather special.

But what rocks even more is the response from David Paich, the fellow who wrote the song.

Greetings!

My name is David Paich. When I wrote Africa I never dreamed of hearing such an innovative rendition. All I can say is awesome!!!!!!!!!!!!!!

I am truly honored that you not only would arrange a choir version of the song but the time and effort into creating REAL MAGIC! I have NEVER received so many emails from artists friends and colleagues on a singular performance of a song.

My hats off to all of you.

I know my co-writer Jeff Porcaro would have shared the same feelings. I know my band TOTO does.

Again, thanks you for such a wonderful gift.I would love to meet everyone sometime soon and maybe work together.

Regards………David

This, ladies and gentlemen, is how derivative works should work.  Goodness all around.

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From the cc flickrstream of sludgegulper Thanks!

I have been watching and reading about the goings on with the UK parliamentarian expenses with a mixture of incredulousness, dismay, horror, and anger. This is a grave insult to the UK tax payers, and a blow to global democracy.  Corrupt politicians around the world can sleep easy. One man’s moat is another man’s Wabenzi.

Other than all the information about moat cleaners, tennis courts, duck shelters, large screen TVs, iPhones for husbands, 200 mile taxi rides, tax advisors, and mortgage payments on mortgages that no longer existed, I was struck by the absolute lack of process and systems to manage the expenses. The inefficiencies and the lack of control are astounding. 

The problems are bigger than technology, The whole process needs a complete overall, but essentially we are talking about some basic compliance procedures. Workflow approvals, automated routing of claims out of policy, electronic receipt management,and SOD (separation of duties).  Even simple expense management system would go a long way to stopping this sort of abuse happening again. Rules can be easily automated and enforced, and with a bit of configuration, even issues such as flipping and claiming for trivia could be managed.

Driven out of a good process system, the data could also be easily mashed up with consumer analytics tools such as Google maps, and a simple query tool, allowing concerned citizens the right to audit.

Indeed, there has been a wave of excellent mashups and analytic reports based on the data that has been released and collated.

image

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Charles Arthur over at the Guardian has a closer lookTony Hirst’s blog gives an excellent account on the technical efforts needed to do this. Looking at what he has done with essentially free software. It is interesting to see how various technologies and techniques have been deployed. more here.  It is a fascinating study for anyone interested in analytics and data visualization. It does make the analytics offerings of many of the software vendors I cover seem rather dowdy, but that story is for another day.

Shining a bit of sunshine on the issue by opening up the data  is the best remedy. After all, when I last looked, parliamentarians work for the citizens.

I would have blogged on this myself, but day job deadlines mean I can’t give it the attention I would like to.  This makes grim reading. 

Instead I will lift Intrepid Ian’s post.

The Joseph Rowntree Reform Trust has this morning published our report on the UK Database State, which finds that:

  • A quarter of all major public sector databases are fundamentally flawed and almost certainly illegal. These should be scrapped or redesigned immediately;
  • The database state is victimising minority groups and vulnerable people, from single mothers to young black men and schoolchildren;
  • Children are amongst the ‘most at risk’ from Britain’s Database State, with three of the largest databases set up to support and protect children failing to achieve their aims;
  • Data sharing is a barrier to socially responsible activities. It is deterring teenagers from accessing health advice and undermining goodwill towards law enforcement;
  • Only 15% of major public sector databases are effective, proportionate and necessary;
  • We spend £16 billion a year on public sector IT and a further £105bn spending is planned for the next five years – but only 30% of public-sector IT projects succeed.

The runaway growth of public sector databases was surprising even to those of us that follow them closely. They have taken six months to catalogue.
You can see coverage of the report in the Guardian, Telegraph, Times, Independent, BBC News, Daily Mail, Metro and from Reuters.

You want access to my personal data?  And this is your Terms of use?

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Noli me vocare, ego te vocabo.

Don’t call me, I’ll call you. 

Cave ne ante ullas catapultas ambules.
If I were you, I wouldn’t walk in front of any catapults.

(latin sayings here)

I’m not a lawyer. This is just my musing,  not any sort of formal legal advice.

I was reviewing answers to my Software and Law survey last night when I saw a tweet  where someone was wondering how to claim the company name back from a Twitter user. The user doesn’t work for the company and was apparently bad mouthing the company. This got me thinking about trademark dispute management in Twitter. or more correctly the lack thereof.

Several years ago I wrote an LLM paper on domain names. It was all about the dispute resolution issues to solve trademark disputes. I remember reading some excellent stuff from legal academics like Froomkin, Edwards, Mueller, and Geist. It was a hot issue at the time, and trademark and domain names are far more complex than first meets the eye. Lots of messy freedom of speech and constitutionality issues. Fun if you like that sort of thing (sadly, I do).

Well, what about cybersquatting in Twitter?  Trademark law applies in Twitterland, the same as it does everywhere else.

Take this case:

1. A person registers the name of a company as a Twitter handle.

2. A reasonable person reading the tweets would then likely assume those tweets came from the company.

3. Those tweets are damaging to the company in that they are misleading, or hostile to the company.

4. Company wants the handle back

5. What happens next?

With domain names, there is a procedure.  It has its flaws, but there is a procedure. 

ICANN has a dispute resolution policy (UDRP), and there is also specific anti-cybersquatting legislation  (ACPA) in the US, and there is case law and specific statute in other countries about domain name disputes. I won’t go into details on the UDRP or the Anti-cybersquatting legislation here, but there is lots of good  information on this issue. see Wikipedia for a start.

Is a Twitter handle a domain name?  If so then the UDRP and the ACPA would conceivably apply, but as Twitter actually own the 2nd level domain name, the Twitter bit in www.twitter.com/name ,  this could get very messy indeed.

Twitter has responsibilities to trademark holders. It has responsibilities to its users and it has responsibilities for privacy and security too. Cool technology is not above the law. This isn’t the first time that Twitter has had IP challenges.

The lawyers are stirring. As one recently stated.

Twitter has become a cesspool of trademark infringement and copyright infringement claims.  Essentially, people set up twitter accounts and add feeds from popular websites and blogs.  They brand the twitter account using the trademark protected logo of a third party and then see how much traffic they can drive.  If you or your company is experiencing brand-jacking on Twitter, contact one of our internet attorneys for more information about your rights and successful approaches to having the infringing content removed.  If you do not protect your trademark registrations and copyrights, who will?

This tone from the lawyer above is not particularly helpful, but the lawyers have a point.  IP infringement does take place in Twitter.  Trademark owners are required to defend their marks, otherwise they risk loosing them.

At the same time Twitter needs to be transparent, even-handed and fair in how it assesses violations. Trademarks often conflict, and simply kowtowing to a trademark holder’s demands  without proper due course isn’t fair to Twitter users either.

According to this post from Steve Poland they still have a lot to learn.  Steve had several Twitter names removed from his possession by Twitter.  He wasn’t happy about it.  Based on the facts in the post I think Twitter were probably right to do so, but the process was far from ideal.

So Twitter, I suggest you create a clear and simple dispute resolution policy for trademark issues, and make it part of your T&Cs. Here is my two cents’ worth.

1. Outline the procedure to challenge a twitter domain registration. Trademark holder to fill in a request form, outlining the grounds for the challenge.

2. Notify the domain name holder that their registration has been challenged, and on what grounds (bad faith, financial gain…)

3. Allow them 2 weeks or so to respond.

4. If the domain name holder wants to contest the challenge, then offer a simple mediation service, at a fixed and relatively small fee, paid for by the challenger.

5. Evidence from both sides to be presented in writing, via an online template,  to the mediator.

6. Mediator replies in writing via email within 10 days or so.

7. Judgement of the mediator is binding on the parties.

8. The fee goes to pay for the mediators, as per the ICANN model.

9. Mediators are required to have a good background in trademark law. Perhaps  this sort of service could be run by law schools with a Information Technology focus?

 

Sort this out please Twitter.

 

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Interior of Kopi,  punk squat and music venue; Kopenicker Strasse, Berlin Photo from the cc Flickr Paul Graham Raven.  Thankyou

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