Image by spiralstares via Flickr

An article in Slate claims:

While legal automation will be a boon for those who can’t afford representation, it’s bad news for lawyers. The industry is already in a slump, and law school is no longer seen as a sure path to riches. Because software will allow fewer lawyers to do a lot more work, it’s sure to drive down both price and demand.

My opinion? Software won’t replace lawyers, but it will reduce the demand for certain routine legal services and raise the complexity of litigation. Those without the software will be at a disadvantage. It will also cut into the work of paralegals. But not lawyers.

(Part of this reminds me of the claims in the early 20th century that polygraph machines would replace juries, since machines could judge truth of falsity and revolutionize the entire legal process. That didn’t happen, of course.)

It’s true that being a lawyer today involves a great deal of drudge work, especially at the lower echelons, and certainly eliminating some of the most time-consuming parts of the profession has the potential to reduce the workload. But while computer programs to generate wills have cut back on the demand for bare-bones legal services, the general result, I think, has been to increase the number of written wills, not to reduce the people who consult a lawyer for more complex drafting. Similarly, I expect contract-writing tools to help create more written contracts, not to reduce the important of lawyers who write and review more complex deals. The result will, hopefully, be more routinized, written business processes — but may result in freeing lawyers to spend more time drafting complex documents that exceed the abilities of programs to interpret alone.

The basics of document review can already be outsourced abroad in some cases, and using machine processing is rather similar. It helps with the routine and frees up time for the more complex.

The law is a complex human construction because society is a complex human construction. As long as it stays that way (and as long as people form a society, it will), it will take humans versed in its complexities to manage it fully.

You see, the goal of “the cloud” isn’t simply putting all of your stuff into some stored space for access. It’s connecting your “stuff”  —  your apps, data, networks, etc. The how, if, why, when and where of that connecting (you could call it, for lack of a better word, “glue”) is wholly dependent on the terms of service around APIs.

via APIs, TOS, and building a hooked web | CloudAve.

In that spirit, lets review the highlights of some terms of service (Tos), current as of February 15, 2009:

Twitter

The main point of the Twitter API’s terms of service (which is surprisingly short!) is that you should get user permission first and not meddle with a Tweet’s content. Perhaps as a result of the very favorable set of terms, many applications access Twitter data, or leverage the Twitter stream.

Flickr

In contrast to Twitter, the Flickr API has a long and extensive set of terms as part of its terms of service. Like Twitter, none of these are too burdensome, although the pre-approval requirement for commercial apps could make basing a business on access to the Flickr API potentially problematic. Highlights include:

• Following all other Flickr and Yahoo terms of use
• Complying with user/owner terms and conditions (private flags, etc.)
• Have your own privacy policy
• Commercial applications have specific requirements and require specific approval from Flickr first (and may require payment)
• No warranty by Flickr, release of liability, etc.  —  plus some more legal terminology

Despite the longer language, most of this is not particularly onerous (possibly excepting the commercial-approval requirement), and there are thus many applications making use of the Flickr API in some form or another.

LinkedIn

The LinkedIn API terms of service are much more detailed and more restrictive. As a result, I know of very few applications that interface with LinkedIn. In reference to their API terms, Eric Norlin writes:

LinkedIn is famous in some circles (no names) for not playing so nice with their API. According to their terms, you can’t store anything other than a profile or ID  —  which is to say you can’t store the most powerful/useful thing about LinkedIn  —  the connections. Beyond that, their TOS says that you can’t use their API and “compete” (though it never defines what that is). And, to put the icing on top, they gain the right to “audit” you if you use their API.

Neither Flickr nor Twitter explicitly limit your ability to “compete” if you use their API (though Flickr might, since they reserve the right to deny “commercial use”), nor do they limit storage of the data you pull via the API. Certainly from a business perspective, it makes good sense for LinkedIn to take this approach  —  connections are the core of their offering, really, so allowing a competitor to leverage those connections via their API is a concern. Nonetheless, setting firm limits on use by everyone, potential competitor or not, severely limits the potential innovation of 3rd-party developers.

Facebook

Facebook has detailed, relatively easy-to-understand policies use of its APIs. Most of the complexity emerges from the fact that there are multiple ways for developers to interact with Facebook. Nonetheless, there are extensive examples and explanations provided by Facebook. There are a variety of limitations placed on developers, but this hasn’t hampered rampant Facebook application development. The biggest limitation  —  similar to LinkedIn’s restriction  —  is that Facebook data cannot be stored for more than 24 hours.

Unlike LinkedIn, commercial application development is clearly encouraged, although there are extensive limitations on how those applications can interact with Facebook. Like Twitter, Facebook’s stream is now available, and applications are starting to leverage it. But like LinkedIn, connection data cannot be stored, even if it can be accessed while a user is connected.

Conclusion

Despite the extensive limitations of Facebook, it is one of the #1 platforms for which 3rd-party developers write applications. LinkedIn, by contrast, has not developed the same number of application developers. Twitter, which has very loose terms, has extensive developer support.

In my opinion, developers write for Facebook because (1) that’s where the users are, first and (2) commercial applications are allowed and even encouraged. Developers write for Twitter because (1) it has users and (2) terms of use are straightforward. Similarly, Flickr has rich content and access is straightforward. LinkedIn, on the other hand, has a complex API and terms of service that appear limiting, especially when it comes to commercial use.

Terms of use are critical. Most allow for the revocation of access if the API provider decides to do so. If that happens to you, you may have little recourse. Make sure you understand the terms before you build a business on top of someone else’s API.

What does this mean in terms of “actually building things”? For software developers, not much. Technical utility of the API itself is much more important. For business developers, they can mean the difference between a neat toy and a profitable venture.

Related articles by Zemanta

• 35 APIs in 7 Days: Facebook, Flickr, Foursquare, Google, Twilio, Twitter, Yelp, and YouTube (programmableweb.com)
• Making a personal site more dynamic (inpropriapersona.com)

Apple’s “app store” continues to generate controversy through its rejections. I must agree with the following analysis that use of icons — especially as provided through an API expressly for that purpose should not violate trademark law (or copyright for that matter).

It is, I think, rather like using “Xerox” or “Coca-Cola” to specifically identify those products — since the whole basis of trademark is to essentially avoid consumer confusion, this usage is not a violation.

The only other potential problem would be too suggest that the trademark is being used to suggest endorsement — also not an issue here, I think, but perhaps more possible.

Here’s the situation: Airfoil is using icons made available through Apple’s API to identify the source of a transmission. Apple rejected the app, saying that it’s display of Apple logos (via the Apple-provided API) violated IP laws.

Airfoil Speakers Touch’s display of these icons falls under fair use. If there’s any doubt to this, look at all the places where Apple displays other people’s icons without their explicit consent, like the Finder, the Dock, Spotlight, etc.

Daring Fireball also has a good, in-depth discussion of various arguments put forth, including a look at just what the iPhone SDK agreement says.

Ultimately, this is not a trademark issue, but simply a matter of Apple enforcing arbitrary and inconsistent requirements for iPhone applications. There’s no legal requirement for them to forbid use of their icons, and no benefit to them in doing so. By insisting on not allowing us to display their icons, Apple is simply wasting everybody’s time, including their own, and inconveniencing our mutual users.

via Under The Microscope.

Related articles by Zemanta

• Respected Developers Begin Fleeing the App Store (apple.slashdot.org)

An add-on that Microsoft silently slipped into Mozilla’s Firefox last February leaves that browser open to attack, Microsoft’s security engineers acknowledged earlier this week.

via Sneaky Microsoft plug-in puts Firefox users at risk ( – Internet – Software – Security ).

I suppose somewhere in Microsoft’s licensing language there is an acknowledgment and release of liability for actions like this. Even so, I certainly don’t think most Microsoft customers expect updates to so directly compromise 3rd-party programs like Firefox  —  and I wonder what Microsoft’s legal responsibility would be, even with their licensing language, should this kind of action truly result in a major loss?

Image via Wikipedia

Cory Doctorow points out that the first 80% of creating a media center is easy: a decent computer (I used an old Pentium III and an old PowerBook, but you can use newer tech if you’re not a poor student), video out (S-Video to an old-school TV, VGA or HDMI to a new HDTV), big hard drives, maybe network sharing (I used an Airport Extreme I inherited) so you can access media from multiple rooms. But what about content  —  “the other 20 percent”?

Now, onto the other 20 percent: the hard stuff. Recording digital TV off-air is trivial, but for cable and satellite, you’ve got to suck up to the copy-protection companies whose business-model stands between you and entertainment nirvana. They don’t want any “user-modifiable” stuff in their device chain, which destroys the elegant commodity solution and leaves nothing behind but a bunch of disposable, crufty, encumbered set-top “appliances” that have a thick crust of business model between you and the TV you’re paying for. These devices want to firewall off your personal media and the media you rip from the precious cable/satellite feeds, and maintain a locked-down path between those stored programs and your other devices. They want to pretend that a media server is a magical device, not a gigantic hard-disk with a couple AV connectors on the side.

via What’s Easy, What’s Hard | Share Life & Smile with the Kodak Theatre HD Player.

Doctorow points out that getting media content is not a technical challenge. One can pull it through Bittorrent, RapidShare, or similar gray services; backup DVDs (purchased or rented); use Amazon or iTunes; or record shows off the air (TiVo like). This is all pretty easy, technically. But extending this to a larger scale?

That stuff is hard because it’s not technical, it’s social and legal. It requires a massive change in the thinking of entrenched execs who are betting they can fight the future until retirement and leave it all to be someone else’s problem.

I believe we’re currently in transition, and old systems are fighting hard to hold on to what they have via legal and social means, such as extending copyright and suing file sharers. The technical innovation exists despite (not because of this); when will the social, legal, or business innovation permit this innovation to grow and prosper? Or will the true innovation actually come when we integrate current socio-legal models with the new technology?

Related articles by Zemanta

• Media centers: the exciting, the boring; the solved, the unsolved (boingboing.net)

IBM’s Lotus Symphony is a free-of-charge alternative to the ubiquitous Microsoft Office suite, based on Sun’s open source OpenOffice software. It purports to remain compatible with Microsoft’s “.doc” format (and newer incarnations), while removing licensing costs (but, not of course, support costs, since people still need training, technical support still costs money, etc.). Now they’ve decided to walk the walk:

360.000 IBM workers have been told to stop using Microsoft Office and switch to the Open Office-based software Symphony.

via IBM Throws Out Microsoft Office – Linux Magazine Online .

In legal circles, standards change slowly  —  some courts still require WordPerfect documents, years after Microsoft Word eclipsed the former dominant word processor in other fields. Theoretically, of course, Symphony (or OpenOffice) still supports older formats  —  but I’m sure I’m not the only one to have suffered minor or major incompatibilities  —  even between different versions of Microsoft Word itself!

So could you make the switch? Would the cost savings be worth the potential hassles?

I mostly have switched away from Word. Unfortunately, I’ve had to keep one licensed copy of Word around to deal with strange issues that may crop up. Usually, these involve collaborative editing projects (“track changes”), or tightly formatted documents, like resumes (which just don’t perfectly translate).

But I have not switched to OpenOffice, nor to Lotus Symphony. I increasingly believe OpenOffice and its kin are courting irrelevancy now that Google Docs and other cloud based office suites are gaining ground, and my tools reflect this.

Is the future in the cloud, not the open-source desktop? My work habits say, “Yes.” (But not without a nagging worry about confidentiality in the cloud.)

So where is the future of legal computing going?

Related articles by Zemanta

• Interoperability eludes Office and OpenOfffice (theregister.co.uk)
• Lotus Symphony now reads Office 2007 documents (computerworld.com)

The  (IFOSS L. Rev.) is a collaborative legal publication aiming to increase knowledge and understanding among lawyers about Free and Open Source Software issues. Topics covered include copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes.

via the International Free and Open Source Software Law Review.

Cearta.ie adds some more details:

It is a peer reviewed biannual journal for high-level analysis and debate about Free and Open Source Software legal issues, and it will receive financial and administrative support from the NLNet Foundation, which supports organizations and people that contribute to an open information society. Edited by Andrew Katz and Amanda Brock, its focus includes copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes. Unsurprisingly, it operates a strong Open Access Policy, providing immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge.

via cearta.ie » New Open Source Law Journal.

So what’s in the first edition? Here’s the (very interesting) table of contents:

Foreword and statement of purpose: an introduction to IFOSS L. Rev., Iain G Mitchell QC

Articles

• The Fiduciary Licence Agreement: Appointing legal guardians for Free Software Projects, Ywein Van den Brande
• Collaborative Approach: Peer-to-Patent and the Open Source Movement, Christopher Wong, Jason Kreps
• Bad Facts Make Good Law: The Jacobsen Case and Open Source, Lawrence Rosen
• Introducing The Risk Grid, Shane Martin Coughlan, Andrew Katz

Case Law Reports

• Jacobsen v Katzer and Kamind Associates – an English legal perspective, Mark Henley

Book reviews

• ‘Open Source Technology and Policy’ by Fadi P. Deek and James A.M. McHugh, Andrew Katz

Tech Watch

• Tech Watch, Adriaan de Groot

Platform

• Collaboration Among Counsel Celebrating the Formation of a Community of Lawyers for the Advancement of Understanding of Free and Open Source Licensing and Business Models, Karen Faulds Copenhaver

This looks like a journal to watch going forward.

Related articles

• International Free and Open Source Software Law Review Launched (computerworlduk.com)
• New Free/Open Source Software law journal launches (boingboing.net)

If WordPress were a country, our Bill of Rights would be the GPL because it protects our core freedoms. We’ve always done our best to keep WordPress.org clean and only promote things that are completely compatible and legal with WordPress’s license. There have been some questions in the community about whether the GPL applies to themes like we’ve always assumed. To help clarify this point, I reached out to the Software Freedom Law Center, the world’s preeminent experts on the GPL, which spent time with WordPress’s code, community, and provided us with an official legal opinion. One sentence summary: PHP in WordPress themes must be GPL, artwork and CSS may be but are not required.

via WordPress › Blog » Themes are GPL, too.

Lloyd writes at A Fool’s Wisdom that:

Talking about licensing really is the suck. Matt’s article became necessary lately as some commercial theme developers have been very aggressive to WordPress community members, who have shared theme code as allowed by WordPress’s viral GPL v2 license.

It frustrates me when I read commercial theme developers complaining about people “stealing” their themes after the thousands of hours they have worked. They make no mention of the hundreds of thousands of hours others have worked on WordPress (counting on the  GPL protecting their freedoms ).

via Commercial WordPress Theme’s PHP Code is GPL 2 Too.

The main point of the legal opinion is that any WordPress theme is so entwined with the main WordPress code as to make it a “derivative work,” and thus subject to WordPress’ copyright and licensing (which is the GPL).

There has been some disagreement in the community about this legal opinion – based on the “viral” nature of the GPL – that WordPress themes also need to be GPL. The main argument against seems to be based on the idea that a WordPress theme could function independently of WordPress. If this were possible, then it would not be an independent work at all.

James Vasile, who wrote the opinion, noted that there might be a situation like this, but that it would be unlikely:

[I]magine using WordPress to serve a single static page. You would use a WordPress theme that does not contain any php but is simply HTML. The HTML would look a lot like data that just passes through the PHP process to the client and does not include any blog entries or sidebar functionality.

It’s a trivial case that turns WordPress into a very complicated version of cat, but that theme would probably be a separate work.

via comments to CMS Themes and the GPL.

I must say that I find the legal opinion to be strong and defensible, and the alternative opinion – that themes are not derivative works – much less convincing based on current copyright law. Actually, as much as I appreciate the GPL, I do not think this is necessarily correct public policy, even if it works in this specific GPL case (right result, perhaps, wrong policy basis). After all, if WordPress carried a non-GPL, more commercial license, then themes could be banned or controlled in very negative ways – a result I would not appreciate.

To restate again, I think themes would legally be too tied to WordPress and are indeed bound to the GPL – I don’t like the law that makes it so – but I do generally like the GPL (which undermines traditional licensing, but is only powerful because of public-policy problems with the law).

Finally, Mark Ghosh, in an article provocatively titled “Licensing is the vehicle, our users are the environment, writes:

In all of our vacillations, are we getting away from our core philosophies? The freedoms that the GPL and WordPress have offered to the folks who choose to make money from WordPress, are also designed to help another, larger group of people. The people who use the software.

via weblogtools collection.

Indeed.

Colleen Chien has a paper in SSRN, dated April of 2009, that explores the narrative of patents, from the epithet of “troll” applied to patent owners who seek only to leverage their patent through licensing, and not application, and including our rather romantic perception of an inventor:

While each patent dispute is unique, most fit the profile of one of a limited number of patent litigation stories. A dispute between an independent inventor and a large company, for instance, is often cast in “David v. Goliath” terms. When two large companies fight over patents, in contrast, they are said to be playing the “sport of kings.” Some corporations engage in “defensive patenting” in order to deter others from suing them. Patent licensing and enforcement entities who sue have been labeled “trolls.” Finally, observers of the patent system call the use of patent litigation to impose or exploit financial distress “patent predation.”

These stories, routinely invoked by the press, advocates, and academics, shape public understanding of the patent system. In this Article, I describe, then match, these stories to data on patent litigations to determine which types of suits are most prevalent. I focus exclusively on the litigation of high-tech patents, covering hardware, software, and financial inventions, using data from the Stanford Intellectual Property Clearinghouse for cases initiated in U.S. District Courts from January 2000 through March 2008.

via SSRN – Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents by Colleen Chien.

Recommended reading for anyone interested in how our society, including the press, speaks about the patent system

Related articles by Zemanta

• How Patents Are Harming Small Companies Too (techdirt.com)
• How Patent Trolls Are A Tax On Innovation (avc.com)
• Strict International Patent Laws Hurt Developing Countries (inpropriapersona.com)
• Do Patents Stimulate R&D; Investment and Promote Growth? (inpropriapersona.com)

Speaking in the context of technology, Michael Crandell at GigaOM writes:

Take yourself back for a moment to 1990, to the era of dueling operating systems: OS/2 and Windows. At the time, many people still used MS-DOS, and Windows was new (and klunky). Microsoft had cooperated with IBM to create OS/2 to overcome the limitations of DOS by adding multitasking, protected mode, and enhanced video APIs. OS/2, they both trumpeted, was a revolutionary computing platform.

Oops. Guess what? Turns out no one wanted revolutionary. We all wanted those improvements, to be sure, but we wanted them delivered in a way that didn’t require redesigning and rewriting our applications, or limiting the devices we could use. Voila! Windows 3.0 brought us evolutionary OS advances, and we all know who won.

Michael applies this lesson to “cloud computing,” a (some say) revolutionary approach to technology infrastructure that places data and applications in remote data centers accessible via the Internet:

What does this have to do with cloud computing? Well, the same principle applies to cloud offerings today. The easier a platform or service is to adopt for existing applications and uses, the more popular it’s going to be, whereas the more it breaks with current practice, the less widespread its appeal.

But the lesson here is broader than the application to cloud computing or even technology. People generally are resistant to change, especially when it means throwing out work they’ve already invested in. This goes for changes in regulatory schemes, legal standards, APIs, user interfaces, and business models. If there can be this much resistance to a new approach that allows for cheaper, more flexible, and more rapid application development, should it be any wonder that music labels or Hollywood so rabidly seek greater protections to preserve the business approach they’ve been using successfully for so long? (Or that the electoral college still exists?)

This is a fundamental lesson that can be applied at many levels. It can mean branding a revolutionary change as evolutionary. It can also mean providing a clear transition to those impacted that protects previous investments.

But the preference for evolution, for protecting prior investments, does not translate to requiring timid technological, legal or social development. It merely means softening the sense of change by giving users, customers, or citizens something to hold onto that provides a familiar interface (in tech terms) to the new way.

A good lesson to remember whatever your field.

Related articles by Zemanta

• Got an Hour? Create a Server in the Cloud (inpropriapersona.com)
• Does Copyright Foster or Hinder Innovation? (inpropriapersona.com)