28 August 2014

Lawyers blog better

Kevin O'Keefe correctly explains that lawyers' blogging is good for the dissemination of news...


04 August 2014

Netflix in Australia

Using Netflix in Australia is a breach of the customer contract between the user and Netflix, even if you are normally domiciled in the USA.

Netflix, like many other companies that distribute media content, is restricted by the geographic regions to which it can provide content. This is hard to do without letting in customers who don't qualify, and accidentally blocking people who do qualify. There are around 20 million Australians, many of which are wanna-be Netflix customers, waving their credit cards, and they can't understand why they can't join the 314 million USA citizens who can access Netflix.

Netflix is just a distributor (well, it's not a content creator for now, but who knows...). It is bound by its contractual relations with its content providers. Assuming Netflix has a rational approach to business, it is not interested in being bound by geographic rules - it would serve anyone in the world if it could provide a satisfactory service.

Content providers have spent money creating content. They will, by and large, not do that if they cannot make a profit from their efforts. In addition, like most economically rational organisations, they will try to maximise return.  I am a lawyer - it might surprise you, but I do give away substantial amounts of my chargeable time, but I try to maximise my return on my personal effort.

The divide between content owners and content distributors is extremely well-canvassed. I'm not writing much new here. What I do want to suggest is that both providers and distributors might find a bit of "leakage", provided there is some remuneration, is acceptable. Why would I suggest that? One of the big questions is: should I (assuming I am the content provider) sell to Australia/UK/New Zealand/Luxembourg/Mexico for the same price that I sell to the USA? Do I refuse to sell until I work out how much I can sell it for? Or, do I just work out how much I can sell in that geographic market, and be prepared to delay launch for a few years knowing that my prices will make up for it? Perhaps the real issue is that the local rights owners just aren't able to make the deal work - there can be many reasons for this.

It's pretty easy for an Australian (or a USA citizen located in Australia) to use Netflix and pay their way. Netflix receives the same income as it would from a USA resident, and the content providers receive their share too. Do Netflix or their content providers really care? They probably do, because they need to look after their contractual obligations towards rights holders in other jurisdictions. These can limit the timing, format, first run, repeats and more. 

How does one do it? There's a few ways, but a quick search suggests that the most popular method is:
  1. set up an account with www.getflix.com.au and change your router settings as advised;
  2. jump on line and go to Netflix and create an account, even with an Australian credit card;
  3. if you have a Chromecast or Roku box, make changes to the static routes on your router;
  4. enjoy.
That was pretty easy to say. In fact, item 3 is harder than it looks. It's possibly a bit more fiddly than you might prefer, but it all does work.  But, there are problems with doing this, and they revolve around breach of contract with Netflix and breach of copyright.

This hardware solution also doesn't mean I can take my Chromecast with me on holidays to Vietnam or France and plug it in and watch (although a VPN on a computer will make it work). The need to configure the edge router means that a Chromecast will never work in a hotel. Having said that, when I'm in Hoi An or Strasbourg, watching telly is not on my list of priorities.

Geographic pricing is nothing new. Many years ago Ford Australia used to build an ugly convertible that sold for less in the USA than it did in Australia. Ford Australia won my admiration by simply admitting that the sell price in Australis was simply what the market would bear - there was little competition.

So my tiny contribution to the geographic content argument is: we are not talking about cars, and that way of thinking doesn't work any more.

03 August 2014

Cyberspace May 2014

The final piece

The Journal of the Law Society of New South Wales is changing, and this is the last journey through cyberspace that I’ll write about. The title of this column has, for the last 16 years, been entitled “Journeys Through Cyberspace” because it has been a journey in terms of the evolution of the internet, my career, technology, societal change and communication. This column has always been written in the first person, because it’s been my journey through cyberspace (a word which is pretty naff today, but in fact remains useful) and a lot of people were interested in coming along on the journey. This piece is an incredibly brief conclusion to a 16 year journey.

While this is the last piece for the Journal of the Law Society of New South Wales, I’ll keep writing regularly on my main blog at http://blog.calvin.it.

At the age of 50 I am a technology geek because that is the world in which I live. In 1983 when I was 20 I had never touched a personal computer (nor had most people), and my technology fix came from being a member of the armed forces (an amazing hand-held computer that could plot our mortar shoots), and tweaking car and motorcycle engines on weekends. Technology takes many shapes. I find it amusing that the forefront of technology today is largely to be found in motor vehicles.

My sole exposure to computing in the early 80s was because of a lecturer at UNSW named Graham Greenleaf, who had typed a few hundred full-text judgements on animal law into the School of Engineering’s VAX (a VAX 4000?). From the law school we could use an acoustic coupler to call the VAX at 300 baud (I can't describe how slow this is), and search for keywords in cases.  Today Graham is an AM, Professor, and co-founder of AustLII, which formed the foundation of legal research in Australia & many other countries.  Speaking of AustLII, I also remember having a conversation with (now Professor) Andrew Mowbray in the early 90s, who was also instrumental in the founding of AustLII. I had just read that someone had come up with a way of using Compact Discs to store computer information, and I was interested in his thoughts. We both puzzled over how on earth that might work. The rest is history.

For reasons that aren't clear to me, over the last few years I’ve become a bit of a gun property lawyer, but it appeals to my interest in contracts and the law in the real world. However, through this column I’ve tried to show how cyberspace and law and the real world work together. I’ve been gratified by all the email I’ve received over the last decade or two (remembering that when I first wrote this column, only 22% of NSW lawyers had an email address). Actually, I ended up writing this column because of a meeting of the Law Society Technology sub-committee, chaired by my then colleague Patrick Fair (who has flourished in his technology & law career and is the chair of the Internet Industry Association). The committee thought it might be worthwhile if the Journal had a column on this internet thing, and I put my hand up. The rest is history (again).

Today my relationship with technology is pretty clear - it enables me to do my job anywhere anytime. Last week I had my car serviced, and for four hours I sat a desk at Renault over their WiFi with a VPN connection to Sydney Water, and punched out four solid hours of work. In a similar vein, when I worked at the ABC I was astonished at the amount of technology in the business and how most of it “simply worked.” Used correctly, technology really is an enabler and not a barrier.

In the early 90s I was a construction litigator at Phillips Fox, and most of those cases were document intensive. I managed to work out a way to use a newish product named FileMaker Pro (now one of the world's most popular databases) and a Macintosh SE30 to capture the information from the documents into a useful database which could produce summaries. These assisted in taking witness statements and finding documents. In fact, during our opening in a Construction List matter our opponent said that we had not pleaded a point we were opening on. A free-text search of the 104 page summons shut him down in a few seconds. They were heady days, and this was, to us, amazing.

During the early 90s a number of the major law firms such as Blake Dawson Waldron, Phillips Fox, Henry Davis York, the Law Society and more were using the Macintosh computers. We had something called document management. It opened my eyes to how electronic information could be managed – thank you Dave Masters. At that time the current Windows operating system was Windows 3.1. I remember having a chat with a Senior Associate at Blakes named Elizabeth Broderick about the future of lawyers who chose a technology path. We both agreed that we were atypical in our career path, but there was probably a future. Elizabeth became a partner in the firm and is now the Australian Sex Discrimination Commissioner.

In about 1994 Phillips Fox was running Macintoshes with Microsoft Mail. There was no concept of Internet e-mail. I had read in a magazine how one could get an Internet e-mail address and send and receive e-mail to other people. I recall contacting Robert Elz in Melbourne to see if we could register phillipsfox.com.au. He was the sole manager of the.au namespace in these early days. We installed Eudora on the Macintoshes and setup an account with Dialix, based at Sydney University. Twice a day, initially, the modem would call Dialix and conduct a UUCP exchange to send and receive email. While this was going on, I remember demonstrating using the web browser Lynx, a purely text based browser, to show how we could read poems from a university in America. The lawyers in my office were astounded. Shortly afterwards I received my first spam, which so offended me that I e-mailed the gentleman involved about it. He telephoned me immediately to apologise, saying that he had purchased a mailing list which he thought he was able to use.

In late 1996 I was working on a matter for London underwriters on a court case known as Estate Mortgage, which was heading for hearing in the Supreme Court of Victoria. There were so many parties involved that an entire floor of the building was leased and fitted out for the courtroom and the parties. Andersen Consulting, working for the receivers, had digitised many thousands of documents relating to the collapse of the fund (a first in litigation at the time), and a way of displaying these at trial was needed. A young Victorian barrister had some good ideas, and wrote a web based evidence and transcript system that that he called Lantern. He sat down with me and showed me the beta of Windows NT 4 and how it could be used to receive and display information over the Web. Today it is named Ringtail and is one of the premier litigation support products in the world.

Towards the end of the 90s I was given for review what looked like a shiny river rock, which turned out to be one of the first Apple Airport Expresses. Together with a very expensive laptop and a very expensive wireless card, I was able to walk around my house and, as I put it in my column, surf in the bath tub. Of course, my house had a second phone line which was purely to dial into the firm to hold up my Internet connection. At that time, many people had a single phone line at home and many a download session was interrupted by someone else picking up one of the extensions. It was quite common for employees to use their business as their ISP and Phillips Fox had 18 dial in lines. I wrote about how the Internet was a good idea, but would never take off until it was "always on". And of course the rest is history (again).
In 2008 I bought one of the first netbooks with a 7 inch screen to travel overseas extensively. Its usefulness was mind blowing, yet today one needs to compare the 1 inch plastic lump with a 7 inch screen and compare it with my Nexus 7 or iPad. But even in 2008, sitting in a cafe using the free Wi-Fi on one of these tiny computers was straight out of Star Wars.

In April 2008 I wrote about Apple giving consideration to introducing a product in Australia known as the iPhone. At that time I was using a BlackBerry Pearl, and also had a Sony S500, which for at this time was an amazing phone. It also had a great camera, which reminds me of the time when I met a Nokia programmer who showed me a preproduction model of a mobile phone with a camera built in. It seemed like a ridiculous idea to me and it would never fly. The rest is history.

The development of litigation discovery over the last 16 years has been a difficult journey, and I still don't think we are there yet. I spent a reasonable amount of my career at the forefront of development, and I am pleased to leave it to others. I wrote the first draft of what was to become the first practice note in relation to electronic discovery in the Supreme Court of New South Wales. Today's version is light years beyond what I wrote, but I still think we have a long way to go.

 It has been unbelievably exciting to have been involved in the development of the law and technology since 1990. I am definitely not finished yet, but this is a good time to document some of the progress. The key to the future is making technology invisible to lawyers so they can just get on with the main game. In 1993 I was badgered online for setting up a USENET group named aus.mountainbiking. I was asked what it had to do with technology. My answer was that technology should be able to help me be a better mountain biker. Technology is not an end in itself, it is just an enabler.

Cyberspace April 2014

You may have read about the recent case of Mickle v Farley [2013] NSWDC 295 (29 November 2013), in which a former Orange High School student was held to have defamed a teacher at the school. Elkaim SC DCJ awarded $105,000 damages plus costs to the plaintiff, who was defamed via Twitter messages and on Facebook. In many respects there is not much new about this case, although the lesson really is that there are many more opportunities to cross the line publicly today, which in the past might have been done over a beer with a couple of friends.

There are other ways to mess up your life (or your parents’) by throwing away $80,000. The Third District Court of Appeal (Florida) in Gulliver Schools, Inc and anor v Snay No. 3D13-1952 recently held that a non-disclosure clause in a settlement agreement was breached by Snay telling his daughter he had settled his claim against his former school employer. The clause prohibited revelation of the existence of the settlement agreement. Shortly after the agreement was signed, Snay’s daughter posted on Facebook to 1200 friends and former Gulliver students: “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” None of that was technically correct, but the appeals court held that as a matter of construction the agreement meant that Snay could not directly or indirectly disclose any information regarding the existence or terms of the agreement. So, the Facebook post wasn’t the key breach, but it was pretty impressive evidence of it. So, under the terms of the confidentiality agreement, Snay forfeited $80,000.

In the aftermath of the Edward Snowden revelations about US Government surveillance of foreigners, you might be amused to know that the Australian Department of Foreign Affairs and Trade set up a special email address for those needing help at the Sochi Winter Olympics. It was a Gmail address.

The Office of the Australian Information Commissioner has released a statement (http://goo.gl/OwJ0bv) confirming that organisations can be held accountable for data breaches where the breach occurs due to a cyber attack. This has always been the case, as privacy principle 11 requires an organisation to take reasonable steps to prevent unauthorised access to personal information. There can be other personal effects too, such as the data breach that Target USA suffered in early 2014, where data on 110 million consumers was lost. The CIO has now resigned.

Of course you read updates to terms of service? Dropbox recently issued an update (https://blog.dropbox.com/2014/02/updating-our-terms-of-service/) which enforces USA binding arbitration unless you explicity opt-out. Class actions are prohibited (although it remains to be seen if this is effective) and the forum for litigated disputes is California. Dropbox also issued new Government Data Requests Principles, which are, frankly, a bit fluffy and seem to lack enforceable substance.

I’m a fan of Evernote (www.evernote.com) to store everything I know but can’t remember, but Microsoft has announced that OneNote is now free for non-business use on all platforms, including OS X. Combined with an Office 365 account or OneDrive (the newly renamed SkyDrive) you have a cloud-based repository for your free-text and rich-text notes. I’m going to stick with Evernote for now (and continue to ignore Google Keep), but OneNote is now a worthy contender on desktop, cloud and mobile devices.