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Yearly Archives: 2007

Big Bad Law Firms

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Ran across this at robhyndman.com:

More and more I hear that many people in business – and in IT in particular – find the behaviour of large law firms and other professional service providers to be alienating and unresponsive to their business problems. And they’re right – large firms are increasingly gearing themselves to focus only on high dollar value work and their culture and the billing philosophies do not lend themselves to a “roll up your sleeves and help me grow my business” attitude. It seems to be getting more and more difficult for businesses to find advisors who understand the client’s problems, and who genuinely want to help.

Ouch. Mr. Hyndman is certainly entitled to his views but being in a somewhat largish firm I would, with respect, not agree. At least not when it comes to the firm I work at. I also don’t think its very fair, to paint all large firms the same brush and imply that lawyers at such firms are only interested in money (and not much else), don’t care about their clients’ business, don’t understand their problems, and don’t want to help.

I think its rather unfortunate that these types of things are said between lawyers and law firms these days. And perhaps I’ll just leave it at that.

Thoughts on Quantum Computing

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Interesting article in Wired News where they interview David Deutsch who they refer to as the Father of Quantum Computing. He has a kind of low key but interesting take on the recent demonstration of a real, live 16 qubit quantum computer by D-Wave, a Canadian company based out of Vancouver.

Low key insofar as he doesn’t seem particularly enthused about the potential of quantum computers, other than perhaps their ability to be used to simulate quantum systems and of course encryption:

Deutsch: It’s not anywhere near as big a revolution as, say, the internet, or the introduction of computers in the first place. The practical application, from a ordinary consumer’s point of view, are just quantitative.

One field that will be revolutionized is cryptography. All, or nearly all, existing cryptographic systems will be rendered insecure, and even retrospectively insecure, in that messages sent today, if somebody keeps them, will be possible to decipher … with a quantum computer as soon as one is built.

Most fields won’t be revolutionized in that way.

Fortunately, the already existing technology of quantum cryptography is not only more secure than any existing classical system, but it’s invulnerable to attack by a quantum computer. Anyone who cares sufficiently much about security ought to be instituting quantum cryptography wherever it’s technically feasible.

Apart from that, as I said, mathematical operations will become easier. Algorithmic search is the most important one, I think. Computers will become a little bit faster, especially in certain applications. Simulating quantum systems will become important because quantum technology will become important generally, in the form of nanotechnology.

(my emphasis). Interesting thought about being retrospectively insecure. Particularly given spy agencies have, in the past, been sufficiently bold to transmit encoded messages on easily accessible shortwave frequencies.

I imagine the spook shops already have their purchase orders in for quantum crypto stuff (or have developed it already internally). Was a bit surprised by the statement above regarding existing technology for quantum computing. I had heard of some demos a while back, but didn’t realize that there are actually several companies offering quantum cryptography products.

Changes in Daylight Savings Time

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Most of you are probably already aware of the legislative change affecting daylight savings in North America. In any event, the nub from an internal note:

The U.S. Energy Policy Act of 2005, passed by the U.S. Congress July, 2005, extended Daylight Saving Time (DST) in the U.S. by approximately four weeks. This change was similarly adopted by the Government of Canada in order to harmonize time zones across North America. As a result, beginning in 2007, DST will start three weeks earlier on March 11, 2007, and end one week later on November 4, 2007, resulting in a new DST period that is four weeks longer than previously observed.

(slight correction by the way – time is governed by the provinces in Canada – see for example the relevant Ontario regulation).

Apart from changing your clocks, you should make a note of whether any patches or updates to your computer systems are required. I know I’ve already seem some traffic on how MS Outlook and Blackberry stuff might need patches as a result of the change. You might also want to highlight this when making appointments during the changed period.

In addition to that, there are also some articles, such as the one in Technology Review, that warn of other potential glitches:

Cameron Haight, a Gartner Inc. analyst who has studied the potential effects of the daylight-saving bug, said it might force transactions occurring within one hour of midnight to be recorded on the wrong day. Computers might serve up erroneous information about multinational teleconference times and physical-world appointments.

”Organizations could face significant losses if they are not prepared,” the Information Technology Association of America cautioned this week.

Dave Thewlis, who directs CalConnect, a consortium that develops technology standards for calendar and scheduling software, said it is hard to know how widespread the problem will be.

That’s because the world is full of computer systems that have particular methods for accounting for time of day. In many, changing the rules around daylight saving is a snap, but in others, it may be more complex.

”There’s no rule that says you have to represent time in a certain way if you write a program,” Thewlis said. ”How complicated it is to implement the change has to do with the original design, where code is located.”

…and don’t forget international stuff:

Also, the change originated in the United States and is being followed in Canada, but not most other nations. That could befuddle conferencing systems and other applications that run in multiple countries at once.

Update: A great and concise article on slaw with more details and better links on the changes in DST.

Jail as a Retirement Option

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Somewhat frightening (or perhaps sad) article on someone who basically chose to go to jail to support himself. The nub:

On May 1, Mr. Bowers — or, as he is known to the Ohio Department of Rehabilitation and Correction, prisoner A535976 — handed a teller a stickup note, got four $20 bills and then handed them over to a security guard, telling the guard that it was his day to be a hero, according to accounts by The Columbus Dispatch and The Associated Press.

At his trial in October, he explained to the judge that he was about to turn 63 and had lost his job making deliveries for a drug wholesaler. He said that with only minimum-wage jobs available, he preferred to draw a three-year sentence, which would get him to age 66, when, he said, he could live off of Social Security. And that is what he got.

Alarm Bells Over Vista’s “Fine Print”

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I like Michael Geist. He’s a law professor at the University of Ottawa and writes a column in the Toronto Star. Not that agree with everything he says, but I certainly do respect the fellow. He’s a sort of Lawrence Lessig of the Great White North, for those of you from the US. A lot of what he says has merit, or at least is worthy of debate. But when I read his last column on how Vista’s legal fine print raises red flags, well, it left me scratching my head a bit. Don’t get me wrong, I don’t think Microsoft is the world’s saviour or anything, and from the perspective of a user I’m not that keen on all the DRM stuff in Vista and the headaches it will cause in using protected content, but OTOH I did raise a bit of an eyebrow to some of his comments on the Vista license. Such as:

Vista’s legal fine print includes extensive provisions granting Microsoft the right to regularly check the legitimacy of the software and holds the prospect of deleting certain programs without the user’s knowledge. During the installation process, users “activate” Vista by associating it with a particular computer or device and transmitting certain hardware information directly to Microsoft.

I don’t particularly like activation, but this is nothing new – Windows XP has activation and as for hardware information, I’m not sure how sensitive I would consider the make or model of my video card to be. I also find the reference to “deleting certain programs” to be a bit overstated. I wasn’t able to find anything about deleting programs in the Vista license I got from the MS website. It implies that Vista can suddenly go wild and start erasing other stuff you’ve installed. The only thing I was able to find was in Section 5(c), which says:

If, after a validation check, the software is found not to be properly licensed, the functionality of the software may be affected. For example, you may

  • need to reactivate the software, or
  • receive reminders to obtain a properly licensed copy of the software,

or you may not be able to

  • use or continue to use some of the features of the software,

Again, nothing particularly surprising – XP had the same thing – you don’t have validated software, you can’t use certain features of the software (i.e. Windows Vista, not other stuff).

Continuing on:

Even after installation, the legal agreement grants Microsoft the right to revalidate the software or to require users to reactivate it should they make changes to their computer components. In addition, it sets significant limits on the ability to copy or transfer the software, prohibiting anything more than a single backup copy and setting strict limits on transferring the software to different devices or users.

On revalidation, again, nothing new at least compared to XP – same complaints of course as well. As for backup copies – well, its pretty standard to only permit one backup. I’d prefer more but I don’t find it super-alarming to be limited to one. As for “strict limits on transferring” these are set out in Section 16:

a. Software Other Than Windows Anytime Upgrade. The first user of the software may
make a one time transfer of the software, and this agreement, directly to a third party. The first
user must uninstall the software before transferring it separately from the device. The first user
may not retain any copies.
b. Windows Anytime Upgrade Software. You may transfer the software directly to a third
party only with the licensed device. You may not keep any copies of the software or any earlier
version.
c. Other Requirements. Before any permitted transfer, the other party must agree that this
agreement applies to the transfer and use of the software. The transfer must include the proof
of license.

I gotta say I don’t find any of the above particularly strict, onerous or burdensome. Before you transfer, you must uninstall and not retain any copies. The transferee must agree to the agreement. You must transfer proof of the license. Hmmm. Doesn’t seem that bad.

Then, onto Windows Defender:

Vista also incorporates Windows Defender, an anti-virus program that actively scans computers for “spyware, adware, and other potentially unwanted software.” The agreement does not define any of these terms, leaving it to Microsoft to determine what constitutes unwanted software.

C’mon. There is a general understanding of what constitutes spyware and adware. And yes, “potentially unwanted software” is vague. But how then, should it be defined? “Bad stuff”? Interestingly he fails to mention the language that follows:

If it finds potentially unwanted software, the software will ask you if you want to ignore, disable (quarantine) or remove it. Any potentially unwanted software rated “high” or “severe,” will automatically be removed after scanning unless you change the default setting. Removing or disabling potentially unwanted software may result in
· other software on your computer ceasing to work, or
· your breaching a license to use other software on your computer.
By using this software, it is possible that you will also remove or disable software that is not
potentially unwanted software.

So Defender will ask you what to do (which he doesn’t mention), except for “high” or “severe” software, which it removes unless you change the setting (which he does). Well, I can understand the auto-removal thing. If it was left off by default (i.e. didn’t remove), then fingers would be pointed at MS at having lousy default security settings – a criticism often levelled (and, I think, justifiably so) at XP’s security settings – the rock on the other side of the hard place Michael identifies.

Then this:

Once operational, the agreement warns that Windows Defender will, by default, automatically remove software rated “high” or “severe,” even though that may result in other software ceasing to work or mistakenly result in the removal of software that is not unwanted.

C’mon Michael, that’s a bit over the top, isn’t it? Even “nice” spyware removers, like Spybot (highly recommended, btw) specifically warn that removing spyware might remove or cause other software not to work any more. Of course. Because many of the filthy, evil, nasty folks who distribute spyware or adware bundle it up with software that people actually want to use, and bundle it up in such as way that you can’t get rid of the spyware without killing the other software. Go figure.

Lastly:

For greater certainty, the terms and conditions remove any doubt about who is in control by providing that “this agreement only gives you some rights to use the software. Microsoft reserves all other rights.” For those users frustrated by the software’s limitations, Microsoft cautions that “you may not work around any technical limitations in the software.”

Grr. Of course. Show me a commercial license that gives anyone “all” rights to use the software without restriction. Actually, even the GPL doesn’t permit that – there are still limitations and restrictions even in open source code as to what you can and can’t do. I don’t think its fair to point to this type of language and imply that Microsoft is up to no good here. Same goes with the last sentence. Sure, you can’t hack the software. Doesn’t surprise me.

I never thought I’d be defending Microsoft’s licensing practices. Not to mention questioning Mr. Geist’s criticisms of same. But there you go. Not that I necessarily think, OTOH, that you should go out and buy Vista. Though it is pretty.

Virtual Diplomacy

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Short one as its getting late. Interesting piece on how Sweden is setting up an embassy in Second Life. As most of you know, Second Life is a MMORPG – a virtual world of sorts where people can control computer generated images of people in a virtual world.

That being said, somewhat less exciting than first blush, as the new virtual Swedish embassy will only provide information on visas, immigration, etc. Perhaps not surprising – I mean, its not like you should be able to get a real-world passport through the use of your virtual character. Nor, God forbid, do I hope they’re introducing the bureaucracy of passports to travel through virtual countries….

Wikiality – Part II

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There was some traffic on the ULC E-Comm Listserv (on which I surreptitiously lurk – and if you don’t know what it is and are interested in e-commerce law, highly recommended) about courts citing Wikipedia with a couple of links to some other stuff, including an article on Slaw as well as an article in the New York Times about the concerns raised by some regarding court decisions citing Wikipedia. Some excerpts and notes to expand on my previous post:

From the con side:

In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”

This raises a good point that I didn’t mention in my previous post. I certainly think Wikipedia is fine to note certain things, but I really, definitely, positively, do not think that it should be cited as judicial authority. In my previous article I thought this was so self-evident I didn’t bother mentioning, but the quote above illustrates that it might not be all that clear. Court decisions, as most of you know, are written by judges who take into account the facts and apply the law to the facts of the case, along with other facts and information that may have a bearing on the case. The source of the law includes statutes and of course previously decided cases, which enunciate rules or principles that the court either applies, distinguishes based on the facts as being inapplicable, or, in some cases, overturns (for any number of reasons). Court decisions are not, of course, published on Wikipedia and are not subject to the collective editing process of Wikipedia, nor should they be. Rather, references to Wikipedia in court cases are to provide additional or ancillary context or facts to a case. They do not and should not derogate from principles of law that are set forth in court decisions. But, contrary to what Mr. Ryesky, Esq., indicates above, I don’t think referring to Wikipedia for context or facts will suddenly undermine the foundations of law, since the legal reasoning itself still will and must be based on sources of law, not facts and not context.

Hence the following end to the NTY article:

Stephen Gillers, a professor at New York University Law School, saw this as crucial: “The most critical fact is public acceptance, including the litigants,” he said. “A judge should not use Wikipedia when the public is not prepared to accept it as authority.”

For now, Professor Gillers said, Wikipedia is best used for “soft facts” that are not central to the reasoning of a decision. All of which leads to the question, if a fact isn’t central to a judge’s ruling, why include it?

“Because you want your opinion to be readable,” said Professor Gillers. “You want to apply context. Judges will try to set the stage. There are background facts. You don’t have to include them. They are not determinitive. But they help the reader appreciate the context.”

He added, “The higher the court the more you want to do it. Why do judges cite Shakespeare or Kafka?”

Exactly.

Patent Lawsuits Catch-Up

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A nice summary of the 2006 e-comm lititation in the E-Commerce Times. Not surprisingly, they call 2006 the “Year of the Tech Patent Lawsuits”. An excerpt on one of my favourites:

For better or worse, patent attorneys can thank the NTP v. Research In Motion case for introducing the word ‘patent troll’ into the general lexicon and more fundamentally, highlighting how easy it is for an upstart to challenge an established company. In short, it made patent law sexy.

This and many other recent cases in with which an e-commerce patent has been challenged by a small company has led to a steady call for reform by the software industry, he said.

“At every opportunity, today’s software market-leaders have called for reductions in the power of patents, increases in the difficulty of obtaining patents, and an enforcement bias toward companies that practice the patent.

Some see the proposed reforms as improving ‘patent quality’ while others see them as a way to squeeze out upstart competitors,” he explained

Wow. I never thought I’d live to see the words “patent law” and “sexy” used in the same sentence, much less using the latter to describe the former. I’ve already ruminated about this topic previously so will keep this one short. Links to the articles below.

Part 1 Part 2

The Virtues and Evils of Open Source

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Yes, I know, I’ve been behind lately. A ton of very interesting things to catch up on. But I’d like to put in one quick note about open source code. I recently came across an article, written last year by a lawyer, generally advising development companies not to use open source. I don’t quite recall where it was (if I did I’d link to it) but I do remember it being quite clear in stating that using open source is A Bad Thing and to avoid it altogether – not just to be careful, but rather to treat it as one would radioactive waste.

With respect, I don’t quite agree. I certainly advise my clients to take a great deal of caution in using open source code, particularly the GPL variety, and very particularly if they have a desire to keep some or all of their own secret, proprietary code secret and proprietary. That being said, I do have many, many clients who have used open source code to great advantage in various ways. Some have simply used existing open source code to avoid reinventing the wheel (and saving on costs), while taking care to keep viral elements out of their proprietary code. Others have been more aggressive with the open source model and have intentionally decided to use open source as the basis for their business model and making their very own code, or parts of it, either open source or subject to a dual-licensing model. As the Red Hats, JBosses, Sleepycats, MySQLs etc. etc. of the world have demonstrated, you can go open source and still have a pretty viable business. And, of course, there are the “old world” companies like IBM who have decided to go open source (in some limited ways – e.g. IBM’s DB2 Express-C thing).

Of course, this is not to suggest that anyone through caution to the wind and just start pulling down stuff from Sourceforge and whacking it into your product. Use of open source definitely requires some planning ahead and consideration of what the business model and value proposition of your business will be. Optimally, enlist the help of a lawyer who’s familiar with open source licenses to discuss what you plan to do and the packages you plan to use. Or, if that’s not feasible, try at least to read the applicable licenses yourself and ensure you comply with them, because if you don’t think that anyone will notice, or that no one will actually sue you, you may want to pay a visit to the GPL Violations Site and reconsider, in addition to the questions that will be asked of you when the due diligence starts on your next round of financing or, even worse, your (aborted) exit event. Can badly managed open source usage (and I emphasize badly managed, not simply open source usage) kill a deal? Definitely.

In short – I don’t think open source is necessarily a bad thing. In fact, it can be a pretty good thing, not just in the social good sense and all that, but also as a business. But it need to be used taking into account its terms of use and ensuring that its consistent with the strategy you plan to take.

If perhaps there’s one thing I’d recommend it would be for shops to make absolutely sure they have a disciplined approach in tracking where code comes from and the terms under which its being used and why its being used. That applies not only to open source stuff, but also, for example, your programmers taking neat snippets of code from Dr. Dobbs or something else, or coming across a nice little script somewhere on the Web and saying “Gee, that’s neat, let’s use it in our product”.

Anyway, if I remember where the article was I’ll update this to include a link.