Managing eDiscovery in New Zealand

Update 25 Feb 2013: All speaker slides are now available at this link.

Last week I presented at the Ernst & Young / E-Discovery Consulting “Managing eDiscovery in New Zealand” conference in Auckland.

The slides for my presentation, “Document Review: Getting, preparing & reviewing data under the new High Court Discovery Rules” are here:

Judge David Harvey gave the keynote presentation, and has also put up his slides:

Update on Aussie price-gouging inquiry

An update on this post from almost a year ago about price gouging in Australia (and New Zealand) by tech companies.

Adobe appears to have bowed to public pressure and cut the price of some of its products – a day after being summonsed to the parliamentary commission investigating the rorts. Adobe had earlier refused to attend voluntarily, which seems a rather strange strategy when you know the result will be a parliamentary summons. Whether the timing of the cuts will help the company in the inquiry or be construed as an admission of guilt remains to be seen, but the timing suggests an attempt to stave off some criticism.

It seems that the price cuts apply to New Zealand customers too, which is only sensible given the proximity of the markets and the fact that New Zealand authorities have signaled they are watching the Australian inquiry with interest.

There is no doubt that New Zealand (and Australian) consumers have been paying far more for identical software delivered via the internet. Australians have seen prices for some digital products stay well above pricing for US customers even as the AUD  exceeded parity with the greenback. It is getting technically harder for companies to enforce regional pricing differentials, and also harder to justify to consumers.

Ironically, when I had to buy Adobe Acrobat last year I was able to pay far less than the online price by buying it (from all places) at Warehouse Stationery. It was the first time in probably 10 years that I had bought software in a box, and will probably (hopefully) be the last! The boxed version was exactly the same software as offered via Adobe’s online store, but much cheaper, even with GST added.

I reiterate that companies should be free to set whatever prices they want (subject to competition laws), but it is good that they can be held accountable by public pressure, competition, and light-handed oversight such as the Australian parliamentary inquiry, which in this case at least has already prompted a voluntary response.

Has Craig Foss come good on software patents?

Following much self-inflicted confusion caused by his last-minute “as such” amendment to the Patents Bill, there are now signs that Commerce Minister Craig Foss may finally heed the calls of New Zealand software developers and ban software patents.

In comments to the NZ Herald last week, Foss said this:

The “as such” limitation ensures that computer programs cannot be patented.

Likewise, in a letter dated yesterday, Foss said:

… I would like to further reassure you that the “as such” wording will not lead to computer programs continuing to be patentable in New Zealand.

… the “as such” wording …. will mean that computer programs will no longer be patentable in New Zealand.

So there we have it: clear, emphatic assurances from the Minister in charge of the Patents Bill that following passage of the new law (as amended by Mr Foss), computer programs will no longer be patentable in New Zealand. Which is great, right? After all, isn’t this what New Zealand software developers have overwhelmingly demanded?

Well yes, but the problem is that Minister Foss’s latest assurances contradict his earlier comments that his “as such” amendment would create a legal “grey area and allow “hundreds of software patents” to continue to be granted in New Zealand. It also confirms that Minister Foss is squarely at odds with leading IP lawyers who have said that his “as such” amendment will allow software patents.

It will surely also leave members of pro-software patent multinational group NZICT scratching their heads. Following Minister Foss’s “as such” amendment to the Patents Bill last year, NZICT CEO Candace Kinser told her members this:

You may have seen the press release that NZICT generated two days ago voicing support of Hon Craig Foss’ announcements to progress the stalled Patent Bill amendments. Included in this announcement was the decision to allow computer programs as patentable.

So NZICT was happy because they thought Foss had decided to allow software patents. Let’s contrast that with Foss’s recent public assurances about the new Patents Bill:

  • The “as such” limitation ensures that computer programs cannot be patented. – Minister Foss, 5 February 2013
  • … the “as such” wording will not lead to computer programs continuing to be patentable in New Zealand – Minister Foss, 12 February 2013
  • … computer programs will no longer be patentable in New Zealand  – Minister Foss, 12 February 2013

The Minister’s assurances are the polar opposite of what NZICT claimed last year. So it is clear that much confusion has arisen as a result of the Minister’s last-minute amendment to the Bill. But Minister Foss has now clearly stated (even “ensured”) that computer programs will not be patentable under the new Patents Bill. The onus is therefore on Minister Foss to clear up this situation once and for all, for the benefit of everyone.

Of course, the best way of doing so would be to drop his “as such” clause which sparked all this confusion in the first place. But if the Minister isn’t willing to do so (for whatever reasons), then the least the Minister can do is answer the following very simple questions, which I will add as “supplementaries” to my list of 10 questions for the Minister.

Supplementary to the Minister:

  1. Does the Minister stand by his statement in the New Zealand Herald on 5 February 2013 that “The ‘as such’ limitation ensures that computer programs cannot be patented“?
  2. Does the Minister stand by his statements in a letter dated 12 February 2013 that “the ‘as such’ wording will not lead to computer programs continuing to be patentable in New Zealand” and “computer programs will no longer be patentable in New Zealand“?
  3. Can the Minister confirm that those statements accurately reflect the intention of the Patents Bill as it relates to patents for computer programs?
  4. Does the Minister agree with the claim by the CEO of NZICT that the intention or effect of the Patents Bill is to “allow computer programs as patentable“.
  5. If the Government will not remove the ‘as such’ clause from the Patents Bill, then will the Minister at least include in the explanatory note the statement that he made to the New Zealand Herald on 5 February 2013, that “The ‘as such’ limitation ensures that computer programs cannot be patented.”; and if not, why not?

Software Patents: 10 questions for the Minister

The Patents Bill is now hovering near the top of the Order Paper, and looks set to be voted on in coming weeks. While most of the new law is a Good Thing™, unfortunately the Government continues to ignore the calls from New Zealand’s local IT industry to undo its last-minute botch-up of the Bill and exclude software patents. Here’s a list of questions for Commerce Minister Craig Foss, whose one-line change to the Bill has so upset the local IT industry.

To the Minister:

  1. Is the Minister aware that legal experts have said that his last-minute “as such” amendment to the Patents Bill (SOP 120) reverses the exclusion of software patents as unanimously recommended by the Commerce Committee, and will result in “no real change in the law“?
  2. Why has Minister changed the Patents Bill in a way that, by his own admission, creates a “grey area” that will allow “hundreds of software patents” to continue to be granted in New Zealand?
  3. What benefit does the Minister see in deliberately introducing a “grey area” into important legislation, in particular in the much-litigated field of software patents which are causing so much harm overseas?
  4. Given that New Zealand software developers have overwhelmingly rejected the Minister’s amendment to allow software patents, and given that the previous Minister had confirmed that the original software patent exclusion would not be altered, in whose interest was the current Minister acting by amending the Bill to allow software patents to continue?
  5. Does the Minister accept that his last-minute change to the Patents Bill to allow (in his own words) “hundreds of software patents” is inconsistent with the unanimous recommendation of the Commerce Committee to exclude software patents (a recommendation which the previous Minister had said would not be changed), and why did he not refer the matter back to the Committee for proper consideration?
  6. Is the Minister aware of the numerous reports and studies confirming that software patents harm innovation and are “sapping billions out of the economy and crushing technology startups“, and if so, why has he amended the Patents Bill to allow software patents to continue to be granted in New Zealand?
  7. Why is the Minister ignoring calls from New Zealand’s IT industry, including the Institute of IT Professionals, InternetNZ, NZRise, NZ Open Source Society, and over 1,200 signatories to an industry petition, to protect New Zealand from the threat of software patents by removing his “as such” amendment to the Patents Bill?
  8. Is the Minister aware that an October 2010 MED report advised that no software patent exclusion, anywhere in the world and in any form, had ever been found to breach the TRIPS agreement, and that “there is no obligation for TRIPs signatories to provide patent protection” for software inventions; and if so, why has the Minister claimed that the “as such” amendment is necessary to compliance with TRIPS?
  9. Can the Minister give any assurances whatsoever to New Zealand software developers and software users that they will not be threatened or harmed as a result of any software patent granted in New Zealand under the new Patents Bill; and if not, why?
  10. Can the Minister confirm that the Government will provide financial assistance to help New Zealand software developers or software users defend against any future lawsuits brought by the holder of a software patent granted under the new Patents Act?

Mega and the Sgt Schultz approach to copyright law


Sgt Schultz sees no copyright infringement

“I think Mega is using encryption not for the security of their users but their own personal legal protection,” Woodward added.  “I cannot imagine anyone who understands encryption would trust their precious data to Mega’s scheme as it currently stands. It would appear that Mega is after people who are looking for somewhere to store their data with a provider who wishes to adopt a position of ‘see no evil’.”

Alan Woodward, from the Department of Computing at the University of Surrey

The most touted aspect of Kim Dotcom’s new Mega site is its encryption – but this feature is said to be as much for Mega’s protection as for its users:

According to Dotcom, Mega has a sophisticated encryption system which will allow users to encode their files before they upload them onto the site’s servers, which Dotcom says are located both in New Zealand and overseas…

As a result, the site’s operators would have no access to the files, which they say would strip them from any possible liability for knowingly enabling users to distribute copyright-infringing content.

Any allegation of copyright infringement against Mega would presumably be met with a response along the lines of “I see nothing!” due to Mega’s claimed (and self-imposed) inability to access the user-encrypted files.

But is it that simple to avoid prosecution for copyright infringement – by simply “seeing no evil”? In a word, no: though a lack of actual knowledge can make prosecution more difficult, a person may still be liable on the basis of constructive knowledge of infringing material. For example, section 36(a) of the Copyright Act 1994 states:

Copyright in a work is infringed by a person who, in New Zealand, other than pursuant to a copyright licence … possesses in the course of a business … an object that is, and that the person knows or has reason to believe is, an infringing copy of the work.

On the issue of constructive knowledge in copyright cases, Justice Smellie said in Husqvarna Forest & Garden Ltd v Bridon NZ Ltd [1997] 3 NZLR 215:

Constructive knowledge is appropriately imputed in other areas of law, if a party wilfully closes its eyes to the obvious or wilfully fails to make those inquiries that an honest and reasonable person in the circumstances would have made.

Thus, adopting a “see no evil” approach does not provide a free ride over copyright law.

In some cases the inability to access stored files will actually make it harder to gain protection from “safe harbour” provisions designed to protect service providers. In New Zealand, section 92C of the Copyright Act 1994 provide such safe harbour protection. However, this protection does not apply where the website:

… does not, as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it.

This requirement does not apply only where the website has actual knowledge of copyright infringement; it also applies where there is “reason to believe” (i.e. the constructive knowledge test mentioned above) that there is copyright infringement. In either case if, having received a complaint, the website does not delete or prevent access to the allegedly infringing material, they will potentially lose the legal protection the section affords.

The new Mega has a top legal team behind it – it claims to have “the most legally scrutinsed business plan in start-up history”, and the old saying about Telecom being a law firm with a large IT department comes to mind – and to be clear Mega is not, to my knowledge, betting the legitimacy of its site solely on the “see no evil” basis described by some media. Lead adviser Ira Rothken makes the comparison with the early legal challenges mounted against the VCR, in which Hollywood studios claimed that VCR’s facilitated copyright infringement:

Rothken responds that many technologies have dual uses, but on balance provide more public good. That’s how the VCR stayed on the market, despite facilitating video piracy. The same argument applies to cloud computing as a whole, he says.

Rothken is referring to the famous decision in which the US Supreme Court ruled (5-4) that VCRs were lawful because even though they could be used to break the law, they had significant non-infringing uses. It is perhaps a stretch to apply that to cloud computing as a whole, but certainly an argument can be made. In New Zealand there is also the availability of section 92B of the Copyright Act, which states (in part):

Merely because [a person] uses the Internet services of the Internet service provider in infringing the copyright, the Internet service provider, without more, does not infringe the copyright in the work…

The scope of this section, and what “without more” means in each case (including in relation to relatively new legal scenarios such as Mega raises), are the key questions and ones on which international case law and evidence will likely be relevant.

Ad blocking – a coming legal battleground?

My latest Computerworld article is online. It is on ad blocking – a subject that has had surprisingly little coverage:

Consider these two facts –

Fact 1: many of the world’s largest internet companies, including Google and Facebook, derive most of their revenue from serving up online advertisements.

Fact 2: one of the most popular browser add-ons is Adblock Plus, free software designed to eliminate online advertising from a user’s browser, with the Firefox version alone recording close to one million downloads per week.

Overall statistics on browser ad blocking are hard to come by, but Mozilla records over 178 million total downloads of Adblock Plus and over 14 million average daily users for its Firefox browser alone. Even when extrapolated over all browsers, this still only represents a small percentage of web traffic. Whether this will grow significantly remains to be seen.

There are also technical ways in which websites try to defeat ad-blockers, but this is somewhat of a cat-and-mouse game between developers, with dynamically-updated filter lists and other techniques giving ad-blockers the upper hand. There is also a growing trend of sites asking users (nicely) to not ad-block them.

The robust health of the online ad industry means that any legal battles over browser ad blocking are probably some years away – if they emerge at all. The attention at the moment seems to be on the nascent but potentially critical cases involving other forms of ad blocking – such as the Fox v Dish litigation currently underway in the US:

Also, browser ad blocking is a slipperier target (practically and legally) than what the likes of Dish are attempting.

Update: Slashdot has picked up the article, with lots of interesting comments.