29 November 2012

The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 passed today

The Privacy Amendment (Enhancing Privacy Protection) Bill 2012 passed today.

This substantially amends the Australian Privacy Act 1988. This is a big deal for Australian businesses. If you collect personal information (including surveillance video) and/or engage in direct marketing of any sort, you will need to understand your obligations (obviously I would be happy to do so for a fee). 

There will be work for businesses to do. A few high points:
  • You will need to disclose more information at the time of collection of personal information
  • It will be prudent to collect, at the time of collection, audit data about when, why, who collected the data. 
  • I suspect a lot of (if not all) IT systems used for collection and storage will require changes to allow storage of the “audit data” and perhaps other information
  • Changes to under 18s data collection
  • All privacy policies will need to be redrafted since the National Privacy Principles are to become the Australian Privacy Principles, and there are substantial changes.

Short explanation is available at http://www.oaic.gov.au/news/media_releases/media_release_121129_privacy_changes.html

© 2012 Andrew Calvin, Sydney

23 November 2012

Nexus 4 - Four days on...

Four days on and I still like Android 4.2 and the Nexus 4, except...

Bad news

1. On day 2 I picked it up to use it and the screen  was flickering very quickly and had a washed out overbright look to it. It stayed that way through several reboots, but resolved itself eventually. It hasn't recurred (yet).

2. Today I picked it up and went to use it but pressing the power/wake button did nothing. I held it down for 15 seconds - nothing.  I used my office phone to call the Nexus and ...

  • it started vibrating like it should, but 
  • the screen stayed black, 
  • there was no ringtone (I know it wasn't in silent mode - I had recently used it).  
  • after I hung up my office phone the Nexus kept vibrating like a call was coming in. 
It stayed vibrating for around 5 minutes until I held the power button down for about 45 seconds, when it finally rebooted.

Good news (sort of)

This handset has got to go...

Following the links on the email order confirmation from Google, I found a help site. After a bit of reading I found both a support form and an Australian 1800 phone number for support. I called the number and spoke to an American named James (we had a chat about Casey Stoner retiring from MotoGP) who agreed that the phone was classified as a DOA, organised the RMA and sent me a detailed email about the return process.

The return process seems very well organised - they will pick it up and at that point I can click a link which will start the shipping of the replacement. I have no assurance that they have a replacement Nexus 4 at the moment to actually send to me (the demand world-wide is very high at present) but I trust that they have held back enough to replace DOAs.

More to follow in due course...

20 November 2012

My Nexus 4 and my iPhone 4S

Nexus 4

I received my new 8GB Nexus 4 yesterday. It's one of the new series of Google-branded devices that sold out in hours when they were released in mid November 2012.

I'm quite new to Android - my first experience with it was 4.1, and this Nexus is 4.2. I've never used an Android phone before. I've been an Apple iPhone user since the iPhone 3, and have a 4S with iOS 6.01 as well.

This is a short review of my findings about the Nexus 4 after 24 hours...

Review summary

I really like it - more than I appreciate my iPhone 4S. I suspect the latter will be for sale on eBay shortly.

Physical design

It's bigger than an iPhone which means a bigger screen. It has on/off and volume buttons and is about 6mm thick.


This is the important bit, because phones are really just containers for the applications and operating system. Here are some bullet points about things I like that are at least the same or better than the iPhone. Bear in mind that I am a Google Apps user so the integration is great, just like it would be on a Windows Phone 8 if you were in the Hotmail camp, or iCloud in the Apple camp.

Here's a random download of my thoughts so far...
  • My home screen shows me my latest email, calendar and RTM to-do list. After using the Nexus 4, the iPhone seems dumb - you have to open an app just to check who you have mail from. (Actually, on the iPhone you can swipe down from the top, but it's not as good as having it on the home screen).
  • It's very easy to cache maps for offline use (great when travelling overseas)
  • They are Google maps
  • You get traffic information for free.
  • The turn-by-turn driving directions just seem better - I'll try to isolate why.
  • Directions can be public transport (shame on Apple), car, bicycle or foot.
  • It has StreetView.
  • You can tell it that some Wi-Fi access points are actually 3G/4G wireless hotspots so it won't don't do big downloads on them. eg You tell your phone it can only download music over Wi-Fi, but you have a 3G hotspot device like a MiFi. The phone would ordinarily think that it's now on Wi-Fi and start downloading like a mad thing, using up your bandwidth or creating extra charges. Instead, it can treat this hotspot like the phone's really on 3G.
  • The new "swipe" typing is very fast indeed. It can even predict the next word.
  • Wider screen is nice
  • It has all the applications I had on iPhone.
  • Screen resolution is as good as the 4S/5.
  • Picked the settings up off my TPG SIM card more accurately than iPhone (I had to futz around with the APN on the iPhone)
  • Blogger App works really well (hence this blog entry...)
  • Google Now automatically presents useful personal information.
  • Can set your own warnings for data usage per month, starting on a billing day you choose, and turn off data automatically when you hit your limit.
  • System wide integration with Google Apps (for Business, in my case).
  • Recent notifications are available to access for quite some time after they arrive.
  • Notifications don't "take over" the interface like an iPhone. You can keep working.
  • You don't have to react to a notification straight away.
  • App switching from notifications is smoother and disrupts less by not shutting apps down.
  • Very small charger
  • Easily send your current location by email or SMS or other built in methods.
  • Widgets are great on the home screens. Eg quick dials,calendar, email, to-do
  • Google IM works well.
  • Nice integration with Skype throughout the OS 
  • $349 v $799 for an iPhone. Some of that is due to more RAM on the iPhone, but 8GB is plenty if you're not pretending it's a music player. I have a 160GB iPod for that.
  • Earphone music quality good
  • Speaker volume about the same as iPhone - maybe slightly less.
  • The Tracks app is a little like trailblazer pro, which is great for tracking what you've done during the day on holidays.
  • My old Blackberry Pearl flashed a red light when I had a message or other notification. I missed this a lot when I moved to the iPhone, because I had to periodically check it to see if I had an email, SMS or other notification. But it's back on the Nexus 4! Actually it's a discreet white LED, but the same idea.
  • Auto brightness could be brighter but plenty bright on manual control, and you can also control brightness with widgets.
  • The widget experience is pretty good.

19 November 2012

Insider trading, without the inside knowledge...

Can you be convicted of the following, when the "information" is actually false? In other words, perhaps false information is not information at all, and therefore you can't be convicted of insider trading...
Trading in securities by persons who possess information that is not generally available and know, or ought reasonably to know, that, if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of the securities.
The answer is "yes, you can be convicted of insider trading when the information is false."

This was established by the little known judgement handed down by the High Court of Australia on 14 November 2012 in Mansfield v The Queen, and Kizon v The Queen, [2012] HCA 49, 14 November 2012, P60/2011 & P61/2011

If the alleged conversations took place, each appellant possessed information about AdultShop that was information not generally available. Mr Day communicated knowledge about a subject (the expected profit and turnover of the company or a particular shareholding in the company) and what Mr Day communicated was not generally available. That the knowledge communicated was not true does not deny that it is "information". (HAYNE, CRENNAN, KIEFEL AND BELL JJ)
Valuable-seeming material may be true or false or partly true – which of these it is cannot be known until a time after it is acted on. But the legislation proceeds on the basis that "insiders" should not be allowed to use that material when it is not publicly available. A key element in the prohibition on insider trading is that which is indicated by the words in s 1002G(1)(a) – information which "a reasonable person would expect ... to have a material effect on the price or value of securities". "Untrue" information can have that effect as well as "true" information. As Buss JA said in the Court of Appeal, "untrue" information may influence people who acquire securities in deciding whether or not to acquire or dispose of them if the untruthfulness is unknown to them. Or if the untruthfulness is known to them, those people can use this knowledge in deciding whether or not to acquire or dispose of the securities.
The insider trading provisions, read as a whole, catch conduct by those who trade on the basis of untruths.

18 November 2012

Don't get caught - "International Catalogue of Trademarks"

A client recently sent me a document he had been sent by the so-called International Catalogue of Trademarks. 

It was in the form of an invoice, clearly based on a recently filed trade mark application with IP Australia, and asked him to pay AUD$1,850 for "registration costs" to an account in Hungary.

What is it?

It's a scam. The document is obviously created as a result of the scam operator monitoring the public trade mark application register. It promises a "listing in the TM-Edition 2012". If that exists (which I doubt), it will such a worthless "thing" (because it doesn't specify if it is paper or electronic) that it is a waste of time, much less money.

Don't do business with them.

13 November 2012

Obeying Court Orders

One of the first things I learned as a junior lawyer was that if a court makes an order, you obey it. It didn't matter if it was something as simple as directions for dates of filing documents - you simply obeyed the court's order.

  1. Because the court said so - that is one of the foundations of a civil society.
  2. Because as a lawyer who complies with orders you gain credibility with the court, and when the day comes that you need a judge to take you at your word as an officer of the court, you need to be able to be trusted.
In Samsung Electronics (UK) Limited v Apple Inc [2012] EWCA Civ 1430 (UK Court of Appeal, 9 Nov 2012)  the court dealt with non-compliance, and made a number of orders against Apple, as well as some unpleasant observations.

What happened? The court had previously ordered Apple to:

- place a specified notice on its web site within 7 days; and
- place specified advertisements in specified newspapers and magazines within 7 days or in the earliest available issue.

Apple Inc was represented in the proceedings by Freshfields Bruckhaus Deringer, and Samsung by Simmons & Simmons.

The text of the notice was specified in an Order of the court. Apple acted in what can only be described as a childish and petulant manner and failed to comply with the order. Let's have a look at the behaviour of Apple and the comments of Sir Robin Jacob (with unanimous agreement from Kitchin LJ and Longmore LJ) in the Court of Appeal...

A. Apple chose not to place the advertisements in the first available issue. It acted in such a way as to ignore the court's order, replacing it with a decision of a marketing and comms person, and "coordinate" the advertisements.

B. Apple simply failed to post the court-ordered notice. It placed words of the notice together with its own text interspersed. That was not compliance with the order.

C. Apple's actual text was even more invidious, in that it made misleading and deceptive statements - in relation to litigation, registered designs and patents. At its best, it can only be said that it must have been drafted by someone who knew nothing whatsoever about the court case. The court said "the matter added was indeed false." However, I may be too charitable about the author's intentions. The court said that it revealed "a fundamental misconception" about what the case was about.

D. The Apple statement referred to patent litigation. 'No patent of any kind has been involved in Germany or here, still less "the same patent."'

E. The Apple statement referred to a design judgement which had already been revoked.

F. The Apple statement made derogatory imputations about the British legal system, which were built upon by sites such as The Register.

G. Apple claimed it would take 14 days to put the notice on its home page "for technical reasons." However, when asked to put on an affidavit as to why it would take 14 days, Apple's claim mysteriously disappeared. The court said "I hope that the lack of integrity involved in this incident is entirely atypical of Apple."

It also ordered indemnity costs against Apple. Indemnity costs are not often awarded - in Australia (similar to the UK) some of the bases for indemnity costs are: hopeless cases, fraud and misconduct, unreasonable conduct or "relevant delinquency", and abuse of process (Judicial Commission of NSW).

A few quotes from the lead judgement:

"I do consider that adding false and misleading material was illegitimate. "

"The false innuendo is that the UK court came to a different conclusion about copying, which is not true for the UK court did not form any view about copying. There is a further false innuendo that the UK court's decision is at odds with decisions in other countries whereas that is simply not true."

"The reality is that wherever Apple has sued on this registered design or its counterpart, it has ultimately failed. It may or may not have other intellectual property rights which are infringed. Indeed the same may be true the other way round for in some countries Samsung are suing Apple. But none of that has got anything to do with the registered design asserted by Apple in Europe. Apple's additions to the ordered notice clearly muddied the water and the message obviously intended to be conveyed by it."

"Finally I should mention the time for compliance. Mr Beloff [Apple's senior counsel], on instructions (presumably given with the authority of Apple) told us that "for technical reasons" Apple needed fourteen days to comply. I found that very disturbing: that it was beyond the technical abilities of Apple to make the minor changes required to own website in less time beggared belief. In end we gave it 48 hours which in itself I consider generous. We said the time could be extended by an application supported by an affidavit from a senior executive explaining the reasons why more was needed. In the event no such application was made. I hope that the lack of integrity involved in this incident is entirely atypical of Apple."

One matter that wasn't dealt with by the court was that many publications have stated that Apple had also posted the notice with scripting elements that caused it to be forced well below the normal readable part of the page, regardless of how tall the user's screen was.

The problem is - is the lack of integrity displayed actually atypical of Apple, or does it think it can treat court orders (and perhaps your data) contemptuously? If it doesn't obey court orders, why would it obey laws that require it to keep your data confidential, or look after your privacy?

12 November 2012

Cyberspace December 2012

Cyberspace is published in the Journal of the Law Society of New South Wales, and online at http://blog.calvin.it

Online textbooks

As someone who’s been doing a bit of study lately, I’ve been buying books. There are advantages to paper books, such as being quick to open, easy to festoon with post-it notes and jottings, and can be read anywhere. However, as a Nexus 7 (Google Android tablet) and iPad owner I am interested in having books available electronically. I recently bought the Lonely Planet Guide for Singapore (in PDF format) from their website, and the CCH Australian Competition and Consumer Law 2011 from Google Play. But do they make sense?

Sadly the CCH book was a bit of a dud. Having 1,940 pages on a 7” tablet was pretty neat, but it cost around $65 and is just a scan of the pages of the book. The text has been made searchable, but you don’t have the ability  to resize the text (to fit more on a page, or make it bigger for the hard of eyesight), nor the other benefits of e-books such changing the font or making the screen white on black (easier on the eyes). Despite purchasing in September 2012, it was an old edition consolidated to 1 January 2011, had around 50 pages of commentary at the front, then just the Act, Regulations and associated legislation. Paying that sort of money for that content made a lot of sense when buying all that legislation in hard copy or printing it yourself was fairly expensive, but in the age of portable document readers it doesn’t really add up anymore. There are much cheaper ways of achieving the same result.

I returned to my former method of using legislation: download the PDFs from the government web sites (found using http://legify.com.au), put them into Dropbox (www.dropbox.com)  insert bookmarks and add markup using my PDF editor (Foxit, or Acrobat standard), all at no cost (assuming you have the software). GoodReader on the iPad is also great for marking up PDFs directly on the device.

Lessons learned

The lesson I learned (because this isn’t meant to be a dig at CCH, nor is it Apple v Android) is that electronic books vary a lot, and you need to watch out for certain characteristics of the book you’re buying. If you want all the benefits of an e-book, then you want flowing, resizeable text. If you want versatility, note that iBooks (Apple format) can’t be read on a PC or Mac, whereas PDFs and books on Google Play can appear on many device types. If you just want access on your PC then a PDF will be fine, but it may not display well on a tablet or phone. There are a number of ebook formats, and not all work on every device. The best advice is to download free books or sample titles and test them on your device. Just watch out for the other “gotchas” mentioned above. There are many eReaders available on Android and iOS platforms that suit both tablets and phones - you may need several depending on the books you acquire - and don’t forget the dedicated readers such as Kindle.

Are there Australian legal e-books out there? Yes, but it’s a select few, they’re hard to find, and a lot are superseded. Few of them actually make use of e-book features. One example, the CCH Australian Business Law by Paul Latimer (31st Ed 2012) has flowing text, and internal hyperlinks to help you move around the book. Not everything that could be hyperlinked is actually hyperlinked (eg cases or legislation) but that might be a product of the book’s intended readership. Checks on a number of other titles showed old editions, no flowing text, or general irrelevance. (My apologies to those excellent books out there that I didn’t find!)

LexisNexis has a few books available in eBook format, but they note (possibly to ensure that no law firm buys them) that an eBook cannot be moved from one device to another. On the other hand, a physical book is pretty easily shared.

© 2012 Andrew Calvin, Sydney, Australia

06 November 2012

Lawyers, open plan and offices

I've got an office now, and I'm excited. I didn't have one for the previous 4 1/2 years - instead, I was in an open plan organisation. We didn't have cubicles - we just had desks. Prior to that I had my own office for the previous 20 years of practise.

My conclusions here are based on time in an organisation with an AUD$7B market cap and an organisation with revenues/expenditure of about AUD$1.3B.

I didn't and don't like open plan:- personally, nor for lawyers, nor for anyone who has to think for a living.

Here are my observations about open plan for lawyers...


Open plan for lawyers is a mistake. Stop thinking about it right now.


Open plan probably made us less friendly, less collegiate and less disposed to spend quality non-work time together. I got sick of listening all day to people on the phone, people talking to people at desks, and seeing people around me. All I wanted to do was get away from them.


I thought I had really mastered the ability to tune out and not be affected by open plan. Now I'm out of that situation, I can clearly see that that was not the case - I had merely come to terms as best I could (and I think I was as good as if not better than most).

I write this blog piece having just spent the better part of two professional work days deep in very complex legislation, and I can see that I just could not have done that work in open plan - either to the level or quality or within the same time frame.

Break out rooms

These are terrible. You don't know whether a conversation at your desk is "breakout room-worthy" or not till part way through it. Then you interrupt the flow and say "let's go to a breakout room" but the closest ones are full. The conversation is damaged.

Going to a breakout room with managers or subordinates makes you look like you're going to trial. If you need to have a "chat" with a subordinate you can't nuance the meeting by waiting till they come to your office for another reason or are passing by. You've got to go and get them and drag them off to a breakout room or "for coffee."

Confidential phone calls

Yes, you can go to a breakout room to make a confidential call. This usually takes a few minutes extra because you have to marshall the documents you need, the phone number, a pen and pad. Of course, you won't have your computer with you in there, so you can't use it to take notes or look things up in the file shares or document management system. You probably won't have your entire paper file either.

But wait -  what if someone calls you on a confidential matter? Two choices - tell them to hang up and you'll call them back in five or so minutes (see previous paragraph), or try to do the extension-transfer-dance, but it will still take a few minutes (see previous paragraph).

Confidential meetings

These suffer from the same problem as phone calls, plus the added time and discontinuity of having to head off to a breakout room. As a bonus, everyone else gets to watch you in your glass-walled breakout room (it has to be glass walled, otherwise you'll be in a room with the equivalent ambience of a refrigerator crate).

Efficient use of space

I'm not sure of this, but I'm fairly confident that open plan does not use space any more efficiently than offices.

Human comfort

I have a small library of books that I need. I cost my employer a great deal. I spend a lot of time at work, and as a non-litigator these days I don't get the chance to get outside that much. I need space and comfort to deal with that. I like to talk to my colleagues without having to make what amounts to an appointment with a breakout room. I like a bit of personalisation of my environment, whether that be having music or the radio on sometimes, or a bit of artwork or Christmas lights.  All these things add up to a bit of comfort for someone who has a lot of responsibility, a long way to fall, and works long hours.

Open plan is anathema to lawyers. Don't do it.