28 June 2007

Exonerated defendant sues RIAA for malicious prosecution

Exonerated defendant sues RIAA for malicious prosecution: "Former RIAA target Tanya Andersen has sued several major record labels, the parent company of RIAA investigative arm MediaSentry, and the RIAA's Settlement Support Center for malicious prosecution, a development first reported by P2P litigation attorney Ray Beckerman of Vandenberg & Feliu.

Earlier this month, Andersen and the RIAA agreed to dismiss the case against her with prejudice, making her the prevailing party and eligible for attorneys fees.

The lawsuit was filed in the US District Court for the District of Oregon late last week and accuses the RIAA of a number of misdeeds, including invasion of privacy, libel and slander, and deceptive business practices. "

USA law is quite different than Australian law - this probably would have been dealt with in the original proceedings in Australia. In fact, there is a procedural argument that she could be barred by not raising it in the original proceedings.

Where Australia leads the USA by a substantial margin is the relative absence of poorly conceived or prepared proceedings, such as the RIAA here or the "pants judge."

In some Australian states such as New South Wales, the attorney filing the original claim must certify that there is a reasonable prospect of success - it would be very hard for the RIAA to do this in Australia based on the flimsy evidence and baseless damages calculations that appear to be often used.

27 June 2007

New Vistas

Holiday snaps

Welcome to Cyberspace (suggestions for a new name gratefully accepted) for another year! For those who've taken digital photos over Christmas you might want to consider Panoramio (http://www.panoramio.com/). I found it while using Google Earth to research a trip to New Caledonia. Basically it allows you to upload your photos to their web site to share with family, friends, or the public at large if you're proud of your photographic skills. However, it also allows you to link a photo to a specific location on Google Earth, and it then becomes visible on the Google Earth map for that location. Earth users can click the push-pin on the map and see your photo of that location. I put a few up from my time at North West Cape in WA and it was refreshing to locate those memories on the map. Further, while inside Panoramio you can see photos taken by other people at the same location (useful if yours were blurry).

Another vista you'll come across this year is Microsoft's Windows Vista (http://www.microsoft.com/windowsvista/). It's a new operating system that replaces Windows XP and Windows Media Centre. If you buy a new PC from now on it will likely have Vista on it instead of XP. Alternatively you can go to a PC shop and buy a copy to upgrade an existing machine. It adds lots of security features as well as usability improvements and a shiny new interface (which you can turn off). I've been using it for a few months and I like it (after some significant hardware upgrades!).

Should you upgrade an existing machine? My advice is "no". Vista definitely has some improvments over XP, but it also has higher hardware requirements and most existing machines will not demonstrate all the benefits. The answer is an even louder "no" if you are thinking about upgrading your office PCs. While I have found that Microsoft Office and many other products work normally under Vista, there are some that break, and you don't want that to happen to your accounting software, digital dictation system, conveyancing package or other critical systems. So, make sure you run Windows Update (http://windowsupdate.microsoft.com), have good anti-virus software and run anti-spyware such as Spybot (http://www.spybot.info) weekly.

Should you get Vista on a new PC? The same considerations apply for your office PC. Do you need to run existing important applications? If so, you'll need to do some compatability testing before you can put that machine into action in the office. Another very important consideration is that Internet Explorer under Vista is version 7. I have found that version 7 breaks some of my litigation support software, particularly those that use Flash or Shockwave for parts of the user interface. I haven't tested online legal research sites, but some of the commercial ones may have similiar problems. Check with your vendor first.

Having said all that, if your IT needs are modest and all you do is use Word, Excel, Outlook and the internet then you're probably safe with Vista. However, another question arises with the release of Microsoft Office 2007 (http://tinyurl.com/38fn2t). It's definitely the greatest improvement in seven years to the Office suite. Does it have new features? Sort of... I recently had lunch with the Australian CEO of Microsoft and a few analysts, and I suggested that in one sense the development of wordprocessors and spreadsheets is finished - there just aren't any more features to add. There was general agreement to this, and Microsoft's aim is to make all these features accessible and usable. I think it's done a good job at this; in fact sometimes I can't find features because they're so obvious on the main screen! Macintosh users aren't left out in the cold either - there's a new version for them coming too.

Office Small Business 2007 is available for a free trial download, and it's worth a look. However, you'll need to test it with any software that interacts with it, such as precedent or conveyancing systems. Powerpoint and Outlook in particular have had some terrific improvements.

26 June 2007

Destroying evidence

Andrew Calvin
Director – Practice Support
DLA Phillips Fox

June 2007

This document is a brief outline accompanying a speech given at a seminar in June 2007. This document is not legal advice. It is a broad outline of legislation. Do not rely on it in making decisions that affect anyone.


Victoria enacted legislation in 2006 - the Crimes (Document Destruction) Act 2006 (VIC) - which created a new offence of destroying, damaging or concealing a document or other thing of any kind that is reasonably likely to be required as evidence in a legal proceeding. Victoria also enacted the Evidence (Document Unavailability) Act 2006 which deals with the consequences of documents not being available.

What does the Act say?

254. Destruction of evidence

(1) A person who—

(a) knows that a document or other thing of any kind is, or is reasonably likely to be, required in evidence in a legal proceeding; and

(b) either—

(i) destroys or conceals it or renders it illegible, undecipherable or incapable of identification; or

(ii) expressly, tacitly or impliedly authorises or permits another person to destroy or conceal it or render it illegible, undecipherable or incapable of identification and that other person does so; and

(c) acts as described in paragraph (b) with the intention of preventing it from being used in evidence in a legal proceeding—

is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum) or a level 6 fine or both (3000 penalty units (about $330,000) for a body corporate).

(2) This section applies with respect to a legal proceeding, whether the proceeding is one that is in progress or is to be, or may be, commenced in the future.


255. Corporate criminal responsibility for offence against section 254


(2) If an officer of a body corporate contravenes section 254, the body corporate must be taken to have also contravened that section and may be proceeded against and found guilty of an offence against that section whether or not the officer has been proceeded against or found guilty of that offence.

What sort of things does it cover?

Any “document or other thing”. Anything. Any record of information. Photographs, labels, discs, hard discs, floppy discs, audio tapes, computer tapes, USB flash drives, films, microfilm, slides, animals, furniture, plans, drawings, electronic files, braille documents, paintings ... Again - any record of information.

What is a legal proceeding?

A criminal hearing, a civil claim, an inquiry, an arbitration, a court reference or any proceeding before a court or person acting judicially.

Does the proceeding have to be on foot?

No. It can be in progress, or is to be, or may be, commenced in the future.

How broadly should I interpret “is to be, or may be, commenced in the future”?

That's not answered by the legislation, but there are some cases around that may be of use, such as British American Tobacco Australia Services Limited v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2002] VSCA 197 (6 December 2002). The court suggested that the test may be similar to that used for the offence of perverting the course of justice.

In a very litigious industry, such as tobacco sales or other frequent product liability areas, this should probably be read more broadly than, say, sales of tea biscuits.

What if part of the document only is affected?

It's still covered by the Act.

What is evidence?

Evidence is anything that a court or other judicial proceeding might use in making a decision.

I understand “destroy”, but what is damaging or concealing?

The relevant conduct is to destroy, conceal, render illegible, undecipherable or incapable of identification. Perhaps it could include cutting off access to an external data storage site (such as a web site).

Who does it apply to?

Both people and companies in, or doing business in, Victoria, including those who expressly, tactily or impliedly authorise or permit another person to engage in the relevant conduct (so long as the person actually does actually engage in the conduct), with the intention of preventing it being used in a legal proceeding.

What's the penalty?

A person: 5 years imprisonment and about $30,000 fine.

A corporation: about $330,000 fine.

How does a conviction affect the legal proceeding that needed it as evidence?

It doesn't. However, the Evidence (Document Unavailability Act), 2006 (VIC) has a lot to say about the consequences of unavailability of documents.

Are there other related laws?

The main related laws are from the common law, mainly being contempt of court and perverting the course of justice. These can both result in fines and imprisonment.

The courts have long held that destruction of documents gives rise to a strong presumption that they were adverse to the interests of the destroying party.

The Evidence (Document Unavailability) Act 2006 (VIC) also allows the tribunal to draw adverse inferences, assume proofs and reverse burdens of proof.

Why did we need this law?

It was largely inspired by a case where a tobacco company destroyed many documents that a plaintiff in later litigation wanted access to (McCabe v British American Tobacco Australia Services Limited [2002] VSC 73 (22 March 2002)). The court struck out the tobacco company's defence. There was an appeal from this case which held that that was not the appropriate remedy.

What does this law do that existing laws didn't?

The penalty of imprisonment and major fines for individuals and corporations is made clearer.

What do I or my organisation need to do?

To quote the Public Record Office of Victoria (Advice 18 to government agencies):

“All agencies will be most likely to avoid liability under the Act if:

1. they create effective, comprehensive records management systems and policies, supported by a corporate culture that does not countenance the illegal destruction of records, and

2. they provide training for all staff involved in records disposal. Agencies in particularly litigious areas of business may need to exercise even greater caution in destroying records related to activities that may potentially give rise to lawsuits. “


© 2007 Andrew Calvin, Sydney, Australia.

This document is not legal advice. It is a broad outline of legislation. Do not rely on it in making decisions that affect anyone.

1. Assented to 4 April 2006, commenced 1 September 2006. Creates Division 5 of Part I of the Crimes Act 1958

Double standards

While many people find it impossible to have their kidnapped children returned from overseas, and non-custodial parents can't get access orders enforced, the USA has finally managed to get its hands on an Australian who had never been to the USA. Hew Griffiths (see Cyberspace May 2005 and United States of America v Griffiths [2004] FCA 879) is now in a cell in Virginia (http://tinyurl.com/38csfq) for alleged copyright crimes. As mentioned in the above Sydney Morning Herald article, His Honour Justice Peter Young is reported as thinking that this is not a good thing; he is concerned that Australian nationals are being handed over to foreign governments because of transgressions of commercial interests.

Coincidentally, it seems that English members of Griffiths' group who were located in Great Britain were tried in Great Britain. One assumes that our justice minister will obsequiously request the transfer of Griffiths to Guantanamo Bay in the near future. I am also mildly amused that the solicitor for the Applicant (i.e. the USA) in the Federal Court proceedings was the Commonwealth Director of Public Prosecutions. I hope the USA received a bill ...

It is alleged that the group's activities involved a loss of $50 million in sales. While it's been a year or two since I studied damages and remedies, one has to look closely at this figure. This is especially so in the light of the USA recording industry's habit of plucking figures for damages out of thin air. Now, even in Australia the sort of conduct alleged would attract additional damages, above the amount of actual or expertly estimated economic loss, so we're talking fairly rubbery figures. But my observations of the "warez" scene (http://en.wikipedia.org/wiki/Warez) suggest that a lot of the downloads from warez sites are by unsophisticated users, particularly children, who would never buy the software in question, and in fact probably try it once and delete it. Quantify that! - especially since this is similar to downloading legitimate trial versions of software and using it for, say, 30 days. Further, does a mere download cause a "loss" in the absence of evidence of installation or use? What if the download doesn't complete correctly?

Anyway, rant over, but it's a pity we don't have more thinkers like Peter Young.


Some time ago I asked in this column if there was anyone interested in networking to discuss law and technology. My thanks to those who responded, but the logistics and numbers meant that we couldn't go ahead. However, the absence of a forum for lawyers and IT professionals has continued to weigh on my mind, resulting in practicesupport.org (http://practicesupport.org/). This is a brand new site aimed at anyone involved in IT and the law, whether they be lawyers or IT professionals in management or on the help desk. Over the next 12 months I trust it will evolve into a community where questions can be answered, ideas exchanged, and cooperation encouraged in non-contentious areas. If you're reading this then you are probably a good candidate to register on the site and get involved! Please also send the link to your IT staff since they're fairly unlikely to be reading this in the first place!

The main area of the site is the Forums, where you can post questions, answers and ideas regarding topics of your choice. A fair number of topics have already been set up, but feel free to suggest more. Don't forget, you can subscribe to topics so that you receive an email whenever new information is posted. While I don't want to see the site turn into nothing but self-promotion, it would be good to see legal software vendors involved as well.

Initially the site is going to have a bit of an empty air to it, but as we all contribute we may see it turn into an important resource on the Internet.


Organisation is a wonderful thing, and not all of us are innately good at it. Sometimes there are just so many things to do that it's hard to know where to start and what to do next. If you're interrupted and a new task arises, how do you deal with that? If it's quickly done, do you do it there and then, or put it on the pile? I've been pondering these things and have listened to a lot of productivity speeches, and it's all starting to gel.

"Email overload" is a well-worn phrase, but unfortunately if that's how your work arrives then you need to deal with it. All up, people attempt to send my firm around ## emails per day. Many don't even arrive, as the email system can see from the first few bytes that they're spam, and the connection is dropped. The rest of the spam is cleaned up at the next stage, so very little gets to my desktop. So all I'm left with is internal corporate spam, and real work. I've got to deal with it.

I've always liked GMail, but just like my work inbox, that inbox gets cluttered up as well with things to do. I read about GTDInbox (http://www.gtdinbox.com/) and found it intriguing. It's a GMail add-on that helps you utilise the principles of Getting Things Done (http://en.wikipedia.org/wiki/Getting_Things_Done) by David Allen. I investigated this and have become quite interested in his approach. Very generally GTD focuses on actions and contexts, not projects. It encourages you to get things to do out of your head and into some sort of container where you can deal with them intelligently. The GTDInbox helps "Get tasks out of your head, answers 'What should I do next?', and reduces stress. Get things done."

Actions and contexts need to be explained. If the project is "renovate the office", then that's relatively daunting. However, there are specific actions to be done, just as if you'd delegate them to someone else. Each action (eg: choose light fittings) has a context - that is, it needs to be done in a certain place - on the phone, using the car, at work, at home, using the computer, going home from work, and so on. These are contexts. So, if you think of a task and write it down, then assign a context, then the next time you find yourself in that context you can just look up the tasks to be done in that context and do them all. You don't worry about the project per se - you just get things done and eventually the project gets done. So, I might have three tasks: take the cat to the vet (context: car), pick up dry cleaning (context: car), buy some grout (context: car). If I'm going to walk towards the car I stop, check my "bucket of actions" to see what I can do in the car context, and then go and do all of them.

A bucket

The bucket of actions could be a PDA (I like my iMate JAMin), or email, or a diary, or a notebook. It doesn't matter too much. In my case, since I'm pretty much online all the time I find email works well. Although my Outlook has dozens of folders, the main ones are "Next action", "Action", "Deferred", "Waiting on someone else", and "Archive" (i.e. Done). GTDInbox makes it very easy to assign contexts and actions to emails. So I can sit at my desk, check "Next actions" and do them and empty it, then move on to "Actions". When email arrives it is either assigned to Next Action or Action, or delegated, deleted or archived. If it takes less than 2 minutes to do, I do it there and then.

Now some of this is slightly wishful thinking, as it takes time to learn these things and change habits. Besides, there are many other productivity theories out there. HOwever, this one fits email perfectly. There's also a commercial Getting Things Done Outlook Add-In from Dave Allen's web site (http://www.davidco.com/) that works well with the system. Try it out - it might reduce stress and help you use technology more effectively.

Level playing fields

One of basic tenets of the Internet has been that it is merely a network for the transmission of packets of data. E-mail, the World Wide Web (ie web pages), online chat and file transfer are just examples of applications available that use the Internet. In other words, the Internet inter-connects disparate networks, such as your work network and my home network, to each other. It is a transport infrastructure, maintained by governments, QUANGOs and private organisations, in a manner very similar to the telephone system the world over.

Does the Internet care if you are reading a web page, watching a video from You Tube (http://youtube.com), talking to a friend over Voice Over Internet Protocol (VoIP) or playing an online game? Normally it doesn't. The base Internet Protocol ("IP") carries the data, which might be TCP or UDP, and your applications determine the rest.

A lot of Internet Service Providers (ISP) don't own any of the infrastructure - they resell what they purchase to consumers. If you deal with a small ISP you are probably simply using a larger commercial provider such as BigPond. Other providers such as Internode, TPG and Exetel own some parts of the infrastructure. But let's say your ISP also is a phone company. If you start making lots of VoIP calls that don't go through the regular phone system then that revenue starts to dry up. I have reduced my Telstra phone bill by 2/3 since I started to use VoIP. So, what if your ISP-Phone-company starts treating your VoIP data differently to web pages? Maybe they'll slow down your VoIP data, arguing that it is slowing down other services such as web pages and email. Oh, so your VoIP calls are poor quality now? Sorry, you'll have to go back to using the ordinary phone line... I don't believe this is happening in Australia at the moment, but it's technically possible. In 2004 in the USA Madison River Commnications blocked their DSL customers from using the Vonage VoIP service. The FCC fined them and things were fixed up, but network neutrality is still not law in the US.

Another example is that of Peer to Peer file sharing networks, such as Bittorrent (http://en.wikipedia.org/wiki/BitTorrent). These allow people to easily download and share files, and since in Australia we generally don't pay for data uploads (only downloads), a lot of people have found this very useful. And no, a lot of the files available through bittorrent are not illegal. However, in an example of this packet/traffic-shaping, the Australian ISP Exetel (http://exetel.com.au) recently decided to slow down by 50% all P2P packets from noon to midnight.

Exetel was a good ISP to me when I was with them, but this seems to be a direct attack on "network neutrality" as it applies to consumers. Not many businesses use P2P for time-critical data, so it's the average Joe who is hit by this. I'd like to see what Exetel's Terms of Service say about their ability to do this.

Perhaps your ISP offers, as does mine, cheap phone calls over VoIP, but you want to use a different VoIP provider. Could they choose to throttle all data to and from that other provider to make it effectively unusable? If Exetel can slow down P2P, why can't it slow down other company's VOIP offerings? There's no suggestion that it is going to, but again it is technically possible.

What's more important?

Let's assume that P2P does slow down, say, VoIP traffic. So? Which one is more important depends on your point of view. You're home bound and you rely on the Internet for your entertainment - P2P is more important to you.

Another example might be that, say, Yahoo could pay more to its service providers for higher speed service end-to-end than other smaller search engine companies. Where's that level playing field? It depends on how much of a free-market economist you are.

Cyberspace July 2007

Destroy evidence? Who me?

I recently spoke at a conference about the destruction of evidence. This has become a hot topic since Victoria codified the common law relating to the destruction of documents. The main thing that the legislation really adds to the situation is personal and corporate criminal liability. However, it does bring to the fore the fact that even trying to obscure a car engine number or Vehicle Identification Number can run foul of the law, since it is obscuring a record of information.

We know that we can't destroy things that may be required as evidence in proceedings. But, do we need to create evidence? A US District Court judge thinks so.

Some background: Generally speaking, a "server" is a computer that provides services to one or more other computers. You might use a file server at work or even home so that more than one person can see shared files. A web server dishes out web pages to possibly thousands of people at a time, and so on. Anytime a server does something, it may, or may not, keep a record of what it did. It does this in a "log" which is just a journal of activity. For example, a web server will often keep a log with the time, date, address of the requesting computer, the item requested, and the result of the request. However, there's no need to turn on logging, and since it impacts on the performance of the server it is common to leave it turned off.

So, let's say you run a server (in this case, a bittorrent server) that is probably used mainly for sharing copyright material. You don't turn on logging - it slows the server, and it's probably better (from your point of view!) that you don't keep a log of what your server's been up to. Columbia Pictures isn't very happy with you and the people who use your server. Columbia: "tell us what your server's been up to." You: "I don't know, I don't record that information." Columbia: "Ah, but there is a moment in time when your server DOES know who's using it and what it's doing, because otherwise it wouldn't know where to send the downloads!" You: "True, but that's in Random Access Memory (RAM) and it's only there for a little while, is inherently volatile, and then the server moves on to something else." Columbia: "So in fact, you do have a record, but you're choosing not to preserve it. Gotcha!"

Create evidence - who, me?

This argument was recently run in interlocutory proceedings in Columbia Pictures Industries et al v Justin Bunneli et al, USDC, Central District of California, CV 06-1093. The court found that the data in RAM "constituted electronically stored information and was within the possession, custody and control of [the] defendants." The court ordered that the defendants "preserve the pertinent data within their possession ... and produce any such data in a manner which masks the Internet Protocol addresses ... of the computers used by those accessing [the] defendants' website ..."

Columbia wanted the IP addresses of users, names of files requested and the dates and times of such requests. Traditionally this might have been termed "fishing" in Australia, but to be fair, it must be very frustrating to literally see your content being misused without a way to find out who's doing it. The movie industry doesn't want to just go after the web masters - they want to get the consumers as well. It's a bit like drugs - do you concentrate on users or dealers?

The judgement is a minefield of perceptiveness and woolly thinking. It covers far too many issues to consider here, but the big one is - where information is intrinsically ephemeral (ie data existing only in RAM), can you be forced to create a separete record of that information solely for the pupose of legal proceedings? In this case, yes. In fact, the judge even required to defendants to change their business process and turn on logging!

Stupid thinking about anti-terrorist security

I was recently staying in the Reef View Hotel on Hamilton Island, Queensland, Australia. I asked the concierge to keep our bags for the day after checkout. That was fine...

Later I went back and asked her to put them on the transit shuttle bus when it arrived, and we would meet it at the airport. She refused, saying there couldn't be unaccompanied baggage on the shuttle bus!

Let's see... I can leave my bags in the base of a 20 story hotel unacommpanied, but not in a bus with 10 people in it... This really is the worst kind of woolly thinking and another example of dumb "security" - in the same way I can take my rather pointy and sharp car keys on a plane but not a small nail file.

These people simply don't think; or at least they apply no analytical approach at all.

Returning an identity value from SQL Server after an insert using an ObjectDataSource

How to return the new identity value from SQL Server after an insert using the objectDataSource in Visual Studio 2005

This is incredibly badly documented, and there are no clear instructions anywhere else on the Internet that I know of! I spent an entire day getting to the bottom of this...

Assumptions: you're using Visual Studio 2005, SQL Server 2000 or later or SQL Express, you can use the Dataset designer.

Create a dataset in Visual Studio

Create a TableAdapter for the relevant table

Add an Insert Query to the TA eg: INSERT INTO [Table1] ([data1]) VALUES (@data1);select @id= scope_identity(); - note that there is an insert query and a select query!

After creating the query (say, named InsertQuery) go to the Properties of the query (ie highlight the query and inspect Properties.)

In the Parameters collection, add a new parameter matching the output

parameter - here it's @id - create a parameter named @id. Set the various values such as direction and type and name it the same @id. Make sure you set the datatypes and make Direction "output".

Now go to your web page in the designer. On the relevant web page, create an objectdatasource. Highlight the objectdatasource and select the property Input Parameters. Add a new parameter matching our

output parameter. In this case, name the parameter "id", source none,

then select Advanced Properties.

In Advanced Properties, set Direction, Name and Type (here, it's Output, ID, int32)

Now you wire up your various textboxes or whatever, and make them inputs for your datasource. When all the input parameters are sorted out, create a "Submit" button.

The code-behind for the Submit is, at it's most basic:


Actually you'll want to do validation and error trapping etc - probably in the Inserting event for the objectDataSource.

In the Inserted event for your objectDataSource (ie in the code behind, create a sub for the Inserted event for the ObjectDataSource) you can access the new parameter thus:

Dim intNewIdentity As string = e.OutputParameters("id").tostring

intNewIdentity will contain the identity value (in most cases - if it's an incredibly high traffic site there is a chance that you will get someone else's identity value due to way the database returns scope_identity(). I miss sequences in Oracle...