New home at Wise Schieble Barkauskas

I have started a new role at Wise Schieble Barkauskas, a family law firm in Calgary, Alberta. We provide family law services such as:

    Access,
    Cohabitation and Prenuptial Agreements,
    Arbitration,
    Child Support,
    Collaborative Law,
    Custody,
    Division of Property,
    Divorce,
    Mediation,
    Restraining Orders, and
    Spousal Support.


Contact me at 403.263.6601 or via email to law@divorceinc.com to arrange for an initial consultation. I can be found online at http://divorceinc.com/ or https://twitter.com/DivorceCalgary

Case Summary: U.S. v. Jones

Lawsof.com has published my recent case summary on privacy and surveillance in the United States.

For the summary, visit:
http://www.lawsof.com/page/US-Supreme-Court-Surveillance-Decision-Limited-to-Physical-Surveillance-Methods.html

For the text of the decision, visit:
http://epic.org/amicus/jones/

How Arbitration Can Save Time and Money and Why it Might Not

I recently attended the Legal Education Society of Alberta's seminar on arbitration. Here are a few key things I took from it that all civil litigators and parties to arbitrations should be aware of:

1. Arbitration is not a panacea. Arbitration agreements and arbitration clauses need to be carefully drafted to ensure that they are appropriate to the circumstances. Adding boiler plate to your contracts is not enough.
2. The effiency of arbitration depends largely on the procedures that the parties adopt. Arbitration counsel should be careful to select appropriate rules and should not select specifc procedures until the issues being disputed are somewhat clear. When in doubt, the arbitrator should be given discretion to make reasonable choices about procedure.
3. Sometimes three heads are better than one. Having one arbitrator costs less but having a larger panel often leads to better-reasoned decisions. Allowing appeals to a three-person panel is a possible compromise.
4. Arbitrator appointments can be contentious. If you have to apply to court to have one appointed, provide a list of options to assist the court.
5. Be sure to follow your adopted arbitration rules precisely when initiating a claim. Otherwise the arbitration may be a nullity and limitations periods may elapse. This is particularly a concern when parties adopt administered arbitration rules that contain provisions for initiating arbitration that they are not aware of.
6. Arbitration often narrows the procedural options available to litigants but also provides options that would not be allowed under the rules of court. This is especially true when dealing with expert evidence.
7. Arbitration awards are more readily enforceable than judgements in foreign jurisdictions.

It was a great seminar over all and I recommend attending it next time it is offered if you are involved in civil claim arbitration.

First Arrest on Virus Creation Charges in Japan

Recently, Japan enacted a law that made it a criminal offence to create computer viruses. It appears that the police did not take long to make their first arrest under the new law.

An unemployed 38 year old man was arrested for distributing a virus that he was accused of making. Allegedly, he created a virus and distributed it by infecting files on his own computer and then connecting to a P2P file sharing system that is popular in Japan, Share. The file was disguised as pornography in an apparent effort to attack other Share users. A specialized cyber-crime police unit detected this and arrested him in Ogaki, Japan. Initial reports varied but it now appears that he was arrested for making the virus.

As of August, the virus was still going strong. It spread to music and comic book downloads available through Share.

Useful Technology Law News Links From September

Here are some of the links from my twitter account that I found most interesting this month:

Oracle's Java Copyright Claims: The Sky Is Not Falling

There is no question that software can be subject to copyright and there is no question that an Application Programming Interface ("API") is software, so why are people up in arms over Oracle claiming copyright over their Java APIs? A lot of industry commentators seem to think that when a company relases an API it is in the public domain and not subject to copyright. In actual fact, however, APIs are generally released subject to licensing restrictions (see the link below to license restrictions for one of Google's popular APIs) and the enforceability of these restrictions depends on the API being subject to copyright.

An API, at its lowest level, is a specification of how different peices of software communicate. It may include things like specifications of the format of data that a peice of software expects and the names of functions that can be performed on that data. At a higher level, APIs include specifications of what the named functions do to data. APIs allow a piece of software to utilize other software without knowing the details of how that other software operates.

To give a grossly simplified illustration for any readers who are not software developers, if a car's engine is a piece of software, looking at the engine you would be able to determine how it is mounted, where gas, oil, air and electricity enter it, and where the transmission has to connect in order to get the tires moving. With that limited knowledge (and some other basics), a car manufacturer can build a new car to accept an engine from any other car in its fleet, or it can build a new car built around an engine licensed from another company without having to know every detail of the inner workings of the engine. Similarly, a software developer can build software that utilizes another developer's software though its APIs without the API developer divulging the inner workings of its software.

For its Android operating system, Google allegedly copied Oracle's Java APIs to create a system that resembles Oracle's Java but runs on Android. According to the reports that I have seen, Google did so without access to the inner-workings of Java but instead worked from the API to create a largely compatible system. The stakes are high here as Java is one of the most popular programming languages around and Google's Android operating systempowers millions of smart phones, tablets and other devices.
In my attempt this morning to find some legal analysis of the Oracle Google API issue, I was surprised to find nothing but rhetoric about how a finding that APIs are subject to copyright would mean the end software interoperability. This is pure hyperbole. What it would end is reverse engineering that is intended to replace the API developer's software. This could actually eliminate a disincentive for developers to release their APIs because they would not need to worry that they are giving their competitors a road map to their product. I am unable to see what is wrong with that. API developers would be still be able to relase their APIs under a license tailored to support specific uses of the API and prohibit others. This is common practice among API developers (including Google, see section 10 of the license linked below).

Can I Sell a Used Book Without Breaching Copyright?

The title of this post poses a question that seems to have a laughably obvious question. After all, I walk past a used bookstore on my way home from work every day. You may be surprised by the answer.