Sydney Lawyers Blog

Anonymous & anor v SOPA & PIPA

Tue, 06 Mar 2012 22:59:00 GMT

While we all know that protecting the copyright and intellectual property rights of creators is an essential part of creative freedom, two proposed Bills in the US (the Stop Online Privacy Act ‘SOPA’ and the Protect Intellectual Privacy Act ‘PIPA’) caused a stir due to strong concerns that the Bills had the potential to stifle free speech online. The ‘hacktivist’ group Anonymous is demonstrably anti-SOPA and anti-PIPA, as they viewed these Bills as violations of the US constituted freedom of speech and a direct attempt by the US Government to censor the internet.

In the hour after the arrest of internet pirate Kim Dotcom (previously discussed in this blog) and the closure of the Megaupload site, Anonymous launched a ‘Distributed Denial of Service’ (DDoS) assault against prominent US websites belonging to the US Department of Justice, Recording Industry of America, Motion Picture Association of America, Universal Music, the US Copyright Office and the FBI. In opposition to SOPA and PIPA, Wikipedia blacked out its free (English speaking) online encyclopaedia for 24 hours on 18 January this year, stating in their Public Statement: ‘It is the opinion of the English Wikipedia community that both of these bills, if passed, would be devastating to the free and open web.’

While you may not agree with the tactics of havoc implemented by Anonymous, as opposed to Wiki’s method of self-closure, Anonymous’ intention and desire to bring the public’s attention to these important freedom of information and freedom of speech issues may be described by some as admirable. Anonymous who, in the past, have justified their hacking by saying they did it ‘for the lulz’ (i.e. for a joke) took a far more serious stance during the strategic attack after the arrest of Dotcom.

Their statement included a comprehensive list of demands, one of which was: ‘No more Megauploads. Any penalties must be narrowly focused, with remedies specifically tailored to individual instances of infringement. Broad reaching site shutdowns harm innocent legitimate users and break the web’. Their statement also outlined their general position: ‘We believe a healthy society doesn’t allow its artists, musicians and other creators to starve.'

The copyright industry has been justly criticized for abusing the political process in a desperate attempt to maintain its role as a cultural gatekeeper, a business model made obsolete by a digital age of free copies. But the RIAA, MPAA & IFPI deserve our opprobrium for making enormous profits while often leaving the very artists it claims to represent *poorer* than they would be as independents. While the public may have greater access to the few artists deemed sufficiently marketable to gain mass media promotion, fewer and fewer of us are making art and music in our own lives.’

Google stated that while it agrees with Congress’ desire to stop internet pirates and counterfeiters, it stated that ‘SOPA and PIPA are the wrong way to do it’ and that the proposed Bills ‘pose a serious risk to our industry’s continued track record of innovation and job-creation.’

Whether or not you agree with the methods of Anonymous, you can’t deny that they are an internet force to be reckoned with. Their cowboy DDoS tactics demonstrate a great ability to bring heavily guarded sites to their knees, if only for a few minutes. The actions of Anonymous, Google and Wikipedia demonstrated a strong opposition to the proposed Bills, bringing these Bills to the ground as they were ultimately shelved by the US Congress - for the time being.

(The assistance of Alexandra Nash in authoring this blog is acknowledged).

Disclaimer: This blog is for general informational purposes only. It is not legal advice nor is it a substitute for legal advice. Readers should seek legal advice on their own particular circumstances. Alan Arnott is a technology & telecommunications lawyer with qualifications in computer science and law with Arnotts Lawyers Jones Bay Wharf in Sydney. For more information, please visit www.arnotts.net.au.

Efficient, responsive and cost effective legal services.

Contact Alan Arnott for urgent assistance on:

· Telephone: +61(0)2 9571 6793

· Facsimile: +61(0)2 9419 8795

· E-mail: sydneylawyers@arnotts.net.au

Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

Do No Evil: Google’s New Privacy Policy

Tue, 06 Mar 2012 22:38:00 GMT

Despite pleas from European regulators, Google’s new Privacy Policy became effective on 1 March. The new policy has sparked fierce discussion over Goggle’s rights over your personal information, and the significance of having great swaths of personal information amalgamated in one place.

Essentially, Google’s new policy ‘streamlines’ your online experience, combining any information which traverses your Google internet searches, Gmail, YouTube (and any other Google platform) while you are logged into any Google service. Previously, each Google product had its own distinct privacy policy, and there was no communication between the products. Some commentators are saying that this is an enormous breach of our privacy, and is especially hard to swallow coming from a company whose mantra is ‘Do no Evil’ and who has always pacified us with strict privacy practices, while others contend that Google has done nothing to increase its information base, but merely brought what it is already entitled to together so as "to create one beautifully simple and intuitive experience."

One of the problems that arise from having a company as integral to our lives as Google holding great chunks of personal information in the one place is that it poses a greater security risk if it were to be hacked or leaked. Think of the privacy nightmare that unfolded after the Sony PlayStation leak in 2011 when reportedly 77 million accounts were hacked, leading to the compromise of millions of users’ credit cards. Google, in all its forms, doesn’t just deal with our financial information, but also very personal information – the idea of having the contents of your emails scanned for the purposes of advertising makes most people uncomfortable, and although this already occurred to some extent prior to the updated Privacy Policy, the idea that this information is now being combined with a great deal of other personal information – our internet searches and activities on YouTube – has created a very Big Brother-ish feeling. It seems as though there’s no escaping, and that every click is being stored in a massive portfolio of information about you, not belonging to you, but worth quite a chunk to advertisers who see the great value in personally customised online advertising.

In addition, there’s no sensible or comprehensive ‘opt out’ function. So, our choice? Google has told us that if we wish to opt out of their new policy, we can simply remove ourselves from all Google products. Of course this would be far easier if Google hadn’t managed to integrate itself so well into almost every facit of our online lives. Although many commentators have attempted to counter harsh criticism against Google, Privacy Commissioners around the world have been quick to raise their concerns. Privacy Commissioners in the Asia-Pacific region have written a joint letter of concern to Google’s CEO Larry Page, which includes the signature of Australia’s Privacy Commissioner, Timothy Pilgrim.

Technology companies need to ensure they tread carefully when it comes to users’ privacy. Never before has an organisation’s privacy policy been susceptible to so much public scrutiny.

(The assistance of Alexandra Nash in authoring this blog is acknowledged).

· Telephone: +61(0)2 9571 6793

· Facsimile: +61(0)2 9419 8795

· E-mail: sydneylawyers@arnotts.net.au

Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

Big Brother Blindfolded at Last? USA moves to create a bill of rights aimed at consumer data privacy

Tue, 28 Feb 2012 00:55:00 GMT

In light of recent breaches into consumer privacy (as noted in this blog), the US Government last Friday (24.02.2012) issued a blueprint for legislation: "Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy", designed to give consumers greater protections and increase certainty as to what constitutes a breach of privacy. The legislation intends to give consumers more control as to what personal data is collected, how it is used, and to whom it is disclosed, and to increase the liability of companies to ensure safety and security for their users’ data. The proposed legislation deals with issues such as the security and responsible handling of personal data.

The difficulty arises in ensuring that companies whose businesses are heavily dependent on the collection and manipulation of personal information do not throw their weight around and interfere too heavily with the creation of such legislation. This concern is paired with fears that data abuse will go largely untracked and unpunished. However, in accordance with a US Federal Trade Commission proposal, Mozilla has this year created a “Do-Not-Track” function through which browsers could prevent web pages from tracking their online behaviour for advertising purposes, giving online users the same choice exercisable by putting your name on a “Don’t Call Me” register for telemarketing. Google, Microsoft, Yahoo and AOL (which collectively account for about 90% of all behaviourally targeted online ads) have committed to using “Do-Not-Track” settings on their browsers at the option of the user. Google has implemented a similar “Keep My Opt Outs” function, allowing users to opt out of personalised ads.

President Obama stated on Friday that “[a]s the Internet evolves, consumer trust is essential for the continued growth of the digital economy” and given that online retail sales in the USA have reached approximately US$200 billion it’s obvious that it constitutes an enormous market that keeps growing, which compounds the need for stringent consumer protection.

Over the coming weeks, companies, privacy and consumer advocates, politicians, law enforcement representatives, and academics will convene to discuss the blueprint and develop enforceable privacy policies based on the Consumer Privacy Bill of Rights. The Washington Blueprint claims that “[n]ever has privacy been more important than today, in the age of the Internet, the World Wide Web and smart phones”, and while this could initially be seen as standard political hyperbole, perhaps there is more than a grain of truth in the statement - never before has so much information pertaining to our personal lives been documented in the one place - the amorphous ‘web’ – details as mundane as who we talk to and when, to our banking details, our family photos, our schedules, and everything else in between.

Credit card scams are only the beginning as identity theft becomes a real threat. In 2005, the Australian Senate Committee released a report called "The Real Big Brother: Inquiry into the Privacy Act 1988" which asserted that “the Privacy Act is simply not keeping pace with the challenges of emerging technologies in this electronic age”. Considering that finding was made in 2005, it is slightly concerning that now, in 2012, there has still been little movement in Australian law to tackle online privacy issues.

(The assistance of Alexandra Nash in authoring this blog is acknowledged).

Disclaimer: This blog is for general informational purposes only. It is not legal advice nor is it a substitute for legal advice. Readers should seek legal advice on their own particular circumstances. Alan Arnott is a technology & telecommunications lawyer with qualifications in computer science and law with Arnotts Lawyers Jones Bay Wharf in Sydney. For more information, please visit www.arnotts.net.au.

Efficient, responsive and cost effective legal services.

Contact Alan Arnott for urgent assistance on:

· Telephone: +61(0)2 9571 6793

· Facsimile: +61(0)2 9419 8795

· E-mail: sydneylawyers@arnotts.net.au

Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

Internet Pirate Marooned in his New Zealand Mansion

Wed, 22 Feb 2012 01:26:00 GMT

Kim Dotcom (nee Kim Schmitz), internet pirate and founder of megaupload.com, has been granted bail in New Zealand today as District Court Judge Nevin Dawson deemed that Dotcom was no longer a flight risk. US Federal prosecutors shut down the Megaupload domain name and froze its assets on 19 January this year and laid charges against two corporations (Megaupload Limited and Vestor Limited) and seven individuals (three of whom remain at large). Dotcom, along with Finn Batato (Megaupload CMO), Mathias Ortmann (Megaupload CTO and co-founder) and Bram van der Kolk, were all arrested on 20 January 2012 at Dotcom’s New Zealand home at the request of a US Federal Prosecutor, in the making of what has been described by the US Department of Justice as “among the largest criminal copyright cases ever bought by the United States”. Almost $20 million worth of assets were seized during the arrest and despite Dotcom’s emphatic denial of any wrongdoing, NZ police state that when they arrived at Dotcom’s home to arrest him, Dotcom activated electronic locks and sought refuge in a safety room where he “sat cross-legged near a safe that contained a loaded shotgun”.

Megaupload was reportedly, at one point, the 13^th most visited site on the internet, generated 4% of internet traffic, and allegedly earned over $US175 million in profits. The US Department of Justice claim that this income is the direct proceeds of crime involving the illegal file sharing of pirated film, TV shows, music, books and software, and that Megaupload has caused “more than half a billion dollars worth in harm to copyright owners”. Dotcom has been charged with three criminal copyright counts and five wire fraud counts in addition to one count of racketeering, one count of conspiring money laundering and two counts of criminal copyright infringement charges. In the USA, racketeering and money laundering charges can result in jail sentences. Some have viewed this case as an attempt by the US Department of Justice to make an example of Dotcom to prevent criminal copyright infringements on the internet.

Consequently, most of Megaupload’s assets have been frozen by authorities in the USA, NZ, and Hong Kong. Given Dotcom’s apparent inability to access any significant funds, Justice Dawson concluded that community perceptions about the wealth (and consequently the flight risk) of Dotcom are exaggerated. This indicates a significant shift in judicial reasoning, as Dotcom’s second bail application at the beginning on the month was unsuccessful, based on the existence of his numerous bank accounts, aliases, credit cards and passports, which landed him in a NZ jail for three weeks. However, it was found that many of Dotcom’s overseas bank accounts were empty, and his passports have since been seized, leaving Dawson J to believe that Dotcom will opt to stay in New Zealand with his family pending the extradition trial. The bail terms are such that Dotcom must stay in his Coatsville residence, and he has been denied access to the internet and, incidentally, helicopters.

This case was initiated by the FBI at the National Intellectual Property Rights Coordination Center and is part of an undertaking by the Department of Justice Task Force on Intellectual Property in the USA to stop the theft of intellectual property.

(The assistance of Alexandra Nash in authoring this blog article is acknowledged).

Telephone: +61(0)2 9571 6793
Facsimile: +61(0)2 9419 8795
E-mail: sydneylawyers@arnotts.net.au

Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

iPhone address books being sent to the cloud

Thu, 16 Feb 2012 05:14:00 GMT

Last April, the late Steve Jobs assured us that Apple ‘haven’t been tracking anybody’, despite the fact that Apple had been recording and storing iPhone users’ location - information made available via the device. Researchers had discovered that Apple was retaining specific information as to users’ whereabouts over a 12 month period, a finding which sparked investigations by various European Governments and demanding answers from US law makers over privacy issues. The controversy was certainly not swept under the rug by Apple, who compiled a written report by (then) CEO Steve Jobs, senior vice president of worldwide product marketing Philip Schiller, and the senior vice president of iPhone software Scott Forstall. Although Apple softened the blow by stating that the location was in fact the location of the WiFi Hotspots and Towers, not the individual devices themselves, they nonetheless accepted that there had been a mistake in the programming resulting in the storing and maintaining of unencrypted data for such extended periods, and in the recording of location even when users had turned their device off. Apple was lauded for its prompt and proactive response; however, they have recently found themselves in a similar privacy issue quandary.

It has now been discovered that some Apple iPhone and iPad apps are absorbing clients’ address books without user’s permission. On 15 February 2011, two US Congressmen, Henry Waxman and G.K. Butterfield, wrote to Apple CEO Tim Cook, asking "[w]hether Apple's iOS app developer policies and practices may fall short when it comes to protecting the information of iPhone users and their contacts." The letter has requested a response from Apple by 29 February; shortly after receipt of the letter, Apple stated that it will bring in measures to require ‘explicit approval’ from iPhone and iPad users in separate user prompts before accessing user’s address book data.

The letter comes after it was discovered by Arun Thampi, a Singaporean developer, that an iPhone networking app developed by ‘Path’ had been uploading his contacts’ names and numbers onto the Path server. In the days that followed, it was revealed that other iPhone apps, such as Facebook, Foursquare, and Twitter were operating similarly. Co-Founder and CEO of Path, Dave Morin (who was cc’d in the letter to Cook), posted an apology on the Path blog on 8 February 2012, acknowledging their mistake and, despite placating us with assurances that all our information was transmitted via an encrypted connection and that it was at all times stored securely, we were nonetheless assured that they have deleted the “entire collection of user uploaded contact information from our servers”.

However, although protestations of guilt and sincere apologies abound, there are some who are more cynical. Internet technology blogger Dustin Curtis has gone so far as saying that ‘there's a quiet understanding among many iOS app developers that it is acceptable to send a user's entire address book, without their permission, to remote servers and then store it for future reference’, a comment posted on his Blog on 8 February 2012. It is Curtis’ belief that the bulk of the responsibility falls, not with app developers such as Path, but with Apple. It is Apple who we know and trust, and therefore it is Apple who should be vigilant in ensuring that trust is not breached.

Telephone: +61(0)2 9571 6793
Facsimile: +61(0)2 9419 8795
E-mail: sydneylawyers@arnotts.net.au

Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

Ruling a reminder to businesses to get their Customer Agreements, Website Terms and Privacy Policies in check

Thu, 17 Nov 2011 00:20:00 GMT

In a 60-page judgment handed down by US District Judge Liam O’Grady of Virginia on 10 November 2011, the US Justice Department has been granted access to the IP addresses and email addresses associated with the Twitter accounts of three former Wikileaks associates.

At the hearing, arguing in favour of the motion to vacate the original court’s orders, counsel tried to argue that:

“We could show that not nobody, but most people, the vast majority of people have no idea that Twitter collects the information about their whereabouts….”

The Judge noted that the Petitioners were informed of the Twitter Privacy Policy, that acceptance of the Privacy Policy was a condition of creating a Twitter account and noted that “Petitioners knew or should have known that their IP address information was subject to examination by Twitter, so they had a lessened expectation of privacy in that information, particularly in light of their apparent consent to the Twitter Terms of Service and Privacy Policy…..they also implicitly consented to disclosure of their IP address information to Twitter as a practical necessity of using Internet technology. The Court therefore concludes that even if Petitioners had a reasonable expectation of privacy in their IP address information, the Twitter Order was not intrusive and was, in fact, reasonable”

The decision reinforces the importance of having Website Terms of Use, a Privacy Policy, Customer Agreements and other relevant documentation in place governing your company's relationship with your customers.

Without such documentation you are likely exposing your business to significant risk.

The full text of the US decision is available here.

Telephone: +61(0)2 9571 6793
Facsimile: +61(0)2 9419 8795
E-mail: sydneylawyers@arnotts.net.au

Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

Has the Qantas turmoil left your IT business exposed?

Mon, 31 Oct 2011 02:34:00 GMT

Over the weekend it was almost impossible to turn on the television without seeing something about the Qantas turmoil and how it has left tens of thousands of travelers stranded around the World. Without a doubt this has not just been problematic for people on vacation - indeed if your business is travel-critical and depends on the prompt delivery of goods or your staff commuting via Qantas' flights, you might have been thinking about what course of action you should take come Monday morning, when as a result of the grounding of Qantas' flights, you cannot perform your contractual obligations to your customers.

The first thing to do is to get your contract reviewed. The parties to a contract may expressly (and in some cases, impliedly) provide in the contract that the occurrence of a particular event (for example, a strike, embargo or industrial action) will result in the suspension of a party's duty to perform its contractual obligations under the contract. These contractual provisions are typically known as force majeure clauses. There may be other ways to extricate yourself from your contractual obligations.

Telephone: +61(0)2 9571 6793
Facsimile: +61(0)2 9419 8795
E-mail: sydneylawyers@arnotts.net.au

Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

Is computer software "goods" or "services"?

Mon, 24 Oct 2011 02:45:00 GMT

From 1 January 2011, computer software has been classified as goods under the Australian Consumer Law (see the definition of “goods” in section 2 of the ACL).

This legislated change will have implications for software developers who have relied on the popular notion that delivery of software is usually a supply of services.

For software developers, this classification of software as goods has a number of important legal ramifications. For instance, software developers need to understand that there are different consumer guarantees that apply to supplies of goods, versus those that apply to the supply of services.

Whether you are a software developer supplying software over the counter, through a clickwrap agreement, via a software-as-a-service model or other arrangement, it is prudent for software developers to have their customer agreements legally vetted for consideration in light of the new Australian laws.

Technology and telecommunications providers face a unique set of legal obstacles. Our Sydney IT lawyers have experience in information technology, telecommunications, internet & intellectual property law, servicing clients in Sydney and around Australia. We live and breath technology, and make it our mission to maintain currency of knowledge both in law and technology.

We have significant experience in the drafting and negotiation of technology related legal contracts such as software licences, support and maintenance agreements and technology services agreements with both private sector and government organisations.

Our contracts are tailored to our clients' specific requirements by an experienced Technology Lawyer and we strive to provide high quality services at cost effective rates.

Please contact me if I can assist with the preparation of a legally binding written contract.

Sincerely,

Alan Arnott

Technology Lawyer

Telephone: +61(0)2 9571 6793
Facsimile: +61(0)2 9419 8795
E-mail: sydneylawyers@arnotts.net.au

Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

Confused by best endeavours/reasonable endeavours/best efforts/good faith efforts/commercially reasonable efforts standards in your software licensing transaction?

Thu, 20 Oct 2011 00:18:00 GMT

In software licence transactions, licensees often seek to impose an obligation on the licensor to exercise its “best endeavours” or “reasonable endeavours” in performing the licensor’s obligations under the relevant agreement. “Best endeavours” and “reasonable endeavours” are predominantly found in Australian and UK agreements. Yet in transactions negotiated with a party in the United States, “endeavours and efforts clauses” may frequently be found pressed by a party seeking to negotiate the exercise of “good faith efforts”, “best efforts” and "commercially reasoanable efforts" clauses.

What really is the difference between all of this confusing jargon? Well it depends on where you are and who you ask.

In the US, unlike “good faith”, which has sometimes been found to impose an obligation to deal fairly with another party, “best efforts” has sometimes been interpreted as requiring the performance of a party’s obligations to a specific standard. US contracts sometimes also require the performance of “commercially reasonable efforts”, but like “good faith” and “best efforts”, these too can be ambiguous unless properly defined. For instance, the meaning of “best efforts” has been recognised by a number of US courts as ambiguous.

Most Australian software licensors entering into transactions with Australian licensees will not come across the US jargon when negotiating the performance of a party’s obligations to a particular standard. More often than not, an Australian agreement will require “best endeavours” or “reasonable endeavours”.

In Australia, the use of the terms “best endeavours” and “reasonable endeavours” are often used to identify a standard of obligation that the parties performing the contract owe one another. In English law, the UK courts place different interpretations on the meanings of “best endeavours” and “reasonable endeavours”. But in Australia, “best endeavours” and “reasonable endeavours” have been held in some cases to generally impose the same or a very similar standard.

It is important not to gloss over drafting which includes references to “best endeavours”, “reasonable endeavours”, “best efforts”, “commercially reasonable efforts” and other similar wording. Using one set of wording instead of another can make a significant difference to the amount of effort you are required to put into the performance of your obligations under a software licensing or services transaction with your customer. And remember, sometimes the courts will make up their own mind as to what they consider is fair and equitable in terms of a party's performance requirements.

A better way of overcoming the ambiguities and uncertainties around a party’s requirement to perform under a software transaction is to use objective criteria to benchmark the performance of the party’s obligations.

Telephone: +61(0)2 9571 6793
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Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

The danger of not having a written agreement

Tue, 18 Oct 2011 04:50:00 GMT

The classic handshake deal between a customer and a supplier is fraught with risk. I regularly receive instructions from clients who find themselves embroiled in a commercial dispute with a supplier, customer, business partner, employee - or even a relative - where the dispute is exacerbated by a failure of the parties to have recorded in writing the parameters and particulars of each party’s respective rights and obligations.

The sorts of reasons I often hear for not having a written contract include:

“I was confident in my relationship with Mr X so I didn’t think that we needed a written contract”
“I didn’t think a written contract would be necessary given the size of the transaction”
“At that point in time I didn’t think I would ever find myself in a court battle with the other side”

These reasons often turn out to be misconceived. Parties that fail to sign written agreements formalising their business transactions will often regret not having formalised their commercial relationship in writing should a dispute arise.

The main reason why legal agreements are most frequently set out in writing is to avoid confusion or ambiguity around the intention of the parties as to their rights and obligations vis-à-vis one another. On the other hand, an oral agreement, an agreement evidenced by conduct or created on a handshake, will often leave the parties in a situation where they will at some point in the future argue about the scope of the relevant transaction or who should take responsibility in any given circumstances.

By failing to record the agreement reached in writing, the parties will be left to try to prove, through relying on varying forms of evidence, the terms of the agreement. But seeking to rely on evidence in a court dispute requires consideration of a whole raft of evidentiary rules and doctrines, such as the infamous hearsay rule, which may in certain circumstances result in a party's evidence being rejected.

The absence of a written agreement does not mean there is no legally enforceable contract. If the essential elements of a contract are present, then a contract may still be enforceable. Generally in order for there to be a valid legally binding contract, it will be necessary to demonstrate than an offer has been accepted, consideration has been given and that there has been a ‘meeting of the minds’ as to the subject of the contract. Other factors will also come into play in evaluating the existence of the contract and its enforceability.

And in certain limited circumstances, Australian common law will impose obligations on parties to pay monies, even in the absence of a written contract. The principle known by the latin term “quantum meruit” will in certain circumstances permit a plaintiff to recover from a defendant so much money as he reasonably deserves, preventing a defendant from being unjustly enriched. There are other legal doctrines that may have an impact on the prospects of enforcing a contract.

A properly drafted written legal contract should be able to give each party comfort in knowing precisely what its legal rights and obligations entail. Contractual documentation prepared by a lawyer who understands the subject matter of the transaction will help avoid both simple misunderstandings and significant contractual disputes and will assist in the preparation of a written document that is more likely to be understood by a judge determining the outcome of a dispute if the matter proceeds to court.

Please contact me if I can assist with the preparation of a legally binding written contract.

Sincerely,

Alan Arnott

Technology Lawyer

Telephone: +61(0)2 9571 6793
Facsimile: +61(0)2 9419 8795
E-mail: sydneylawyers@arnotts.net.au

Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

Software Audits

Sun, 07 Aug 2011 23:28:00 GMT

Software audits enable software licensors to exercise contractual rights to 'vet' a licensee's use of the licensor's software. Prior to an audit being conducted, various considerations should be made from both a licensor's and a licensee's perspective. Our technology lawyer was recently interviewed by IT News on a number of legal issues arising from software audits.

Telephone: +61(0)2 9571 6793
Facsimile: +61(0)2 9419 8795
E-mail: sydneylawyers@arnotts.net.au

Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

Privacy law for software companies - Facebook rolls out "opt out" facial recognition technology

Thu, 09 Jun 2011 06:37:00 GMT

This week saw Facebook in the media spotlight again with news that it has rolled out its facebook facial recognition functionality on an "opt out" basis. This means the technology is enabled by default.

According to Bloomberg's Businessweek, "Facebook Inc. will be probed by European Union data-protection regulators over the feature that uses face-recognition software to suggest people’s names to tag in pictures without their permission".

One of the members of the regulatory body has been quoted as saying that the technology should only be applied based on prior consent.

In my opinion, this is a thorny area of law and there are considerations that should be made on both sides of the fence. For instance, on one hand, what difference does it make if a computer tags someone or their Facebook friend tags them? On the other hand, it would certainly be more respectful of people's privacy if this sort of technology were rolled out on an "opt in" basis (i.e so that the technology would not be applicable unless a user expressly took the step of enabling it in their account settings).

Privacy considerations should constitute an important part of a software providers' legal analysis prior to deployment. And software developers need to weigh up the risks of rolling out technology which might easily be alleged to invade privacy, versus the risk of rolling out technology on an "opt in" basis which might mean that nobody will use the functionality.

Perhaps this is an area that regulators should start to think about more carefully. A person's image is not protected by copyright. Should it be, for the purposes of Facebook? Or is the overlap between copyright and privacy no longer relevant when it comes to tagging people on Facebook? These are some of the controversial questions that, I believe, should be tackled head on by regulators so that both individuals and software organisations know where they stand.

In the interim, when it comes to deployment of software functionality that deals with personal information, software organisations might want to take a more careful approach than Facebook has done with this facial recognition technology, lest they get burn by public opinion, the regulators and possibly the Privacy Watchdog.

Photographs of individuals can raise a number of legal issues, ranging from those obvious ones under privacy and copyright law, together with issues under the laws of defamation, trade practices and passing off issues, and other laws.

Alan Arnott can be consulted on software organisations' specific privacy obligations under Australian federal privacy law.

Disclaimer: This blog is for general informational purposes only. It is not legal advice nor is it a substitute for legal advice. Readers should seek legal advice on their own particular circumstances. Alan Arnott is a technology & telecommunications lawyer with qualifications in computer science and law with Arnotts Lawyers Jones Bay Wharf in Sydney. For more information, please visit /www.arnotts.net.au.

Efficient, responsive and cost effective legal services.

Contact Arnotts Lawyers for urgent assistance on:

Telephone: +61(0)2 9571 6793
Facsimile: +61(0)2 9419 8795
E-mail: sydneylawyers@arnotts.net.au

Postal: Suite 109, 26-32 Pirrama Road, Pyrmont, New South Wales 2009 Australia

Sony loses another 25 million accounts to hackers

Tue, 03 May 2011 03:44:00 GMT

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Software development - the importance of obtaining customer signoff

Wed, 20 Apr 2011 06:34:00 GMT

Clients engaged in the development of software know that time after time customers will come back to the developer, prior to making the final payment, complaining that there are certain features missing from the developed solution. This usually relates to a mismatch between customer and supplier requirements relating to the project.

Software developers can overcome this sort of 'scope creep' by insisting on a comprehensive functional specification being completed and signed off by both parties prior to commencement of work, and by requiring the customer to hand over a certificate confirming the customer's acceptance of the delivered solution, prior to the supplier enabling the system to 'go live'.

Developers that neglect to insist on the above documentation, together with a comprehensive software development contract that accurately defines each party's rights and obligations, are playing with fire.

Disclaimer: This blog is for general informational purposes only. It is not legal advice nor is it a substitute for legal advice. Readers should seek legal advice on their own particular circumstances. Alan Arnott is a technology & telecommunications lawyer with qualifications in computer science and law with Arnotts Lawyers Jones Bay Wharf in Sydney. For more information, please visit http://www.arnotts.net.au.

Efficient, responsive and cost effective legal services.

Contact Arnotts Lawyers Jones Bay Wharf for urgent assistance on:

Telephone: +61(0)2 9571 6793
Facsimile: +61(0)2 9419 8795
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E-security legal issues

Tue, 19 Apr 2011 09:28:00 GMT

One way for a reseller to gain an edge on competitors is to market the advantages associated with its products in a unique way. In the security channel, a white paper marketing the legal and commercial advantages of a security product presented in a compelling way may prove to be a successful method of enticing a customer into purchasing your security solution.

Security is critical, there is no doubt about it. The smallest breach or compromise can result in situations that can cripple business. Recently, the two big e-security stories have been the disruption to the Russian Trading System (RTS) stock exchange caused by a virus in early February and the extradition proceedings currently underway in the UK against a hacker who allegedly hacked into approximately 100 Pentagon, NASA and other American military networks.

One area of e-security that a white paper could be prepared on is surveillance. Many organisations are already aware of the vulnerabilities posed by internal staff and subcontractors using the organisation's corporate network and always-on internet access. In fact, most large organisations now track their employees' internet and email usage to ensure that trade secrets are not being leaked to competitors via these means and that employees are not using internet access for other unscrupulous purposes.

In New South Wales, parliament has passed workplace surveillance legislation that is now in effect. Your customers should be made aware of these laws. The laws regulate the use of computer, camera and tracking devices. The main obligation imposed on your customers under these laws is the obligation to notify employees of surveillance practices at least 14 days prior to commencing surveillance activities. The new laws also set out specific procedures and practices associated with covert surveillance. Further, obligations are imposed in relation to the retention of surveillance records and there are new obligations related to computer policies and other documentation that employees need to be made aware of. The new laws should not be taken lightly. Breach of the new laws may attract significant penalties. In addition, if a company contravenes any provision of the new laws, all directors and management of the company may also be held accountable.

Another way of enticing your customers is to mention the legal consequences associated with breaching e-security. Hackers can be brought before courts under Australian computer crime laws for gaining unauthorised access to computer systems. These laws may even see hackers thrown in jail.

Organisations who are serious about e-security should ensure they are covered by an insurance policy that extends to loss occasioned as a result of hacking or breach of the organisation's e-security generally. Customers should be reminded that breaches of electronic security measures can be just as disastrous as breaches of physical security measures.

Disclaimer: This column is for general informational purposes only. It is not legal advice nor is it a substitute for legal advice. Readers should seek legal advice on their own particular circumstances. Alan Arnott is a technology & telecommunications lawyer with qualifications in computer science and law with Arnotts Lawyers Jones Bay Wharf in Sydney. For more information, please visit http://www.arnotts.net.au.

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Telephone: +61(0)2 9571 6793
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