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New Media Lawyer Independent news and comment on legal technology and new media law from Legal News Media. Issue.85 - 26.07.2001
IN THIS ISSUE
WHAT WE DID ON OUR HOLIDAYS
HUMMINGBIRD ACQUIRES VIRTUAL DEALROOM COMPANY
Hummingbird say the acquisition "will allow the company to incorporate exciting new collaboration functionality into its existing enterprise portal and document management products, thus opening up significant new market opportunities". Industry sources say Hummingbird is in an acquisitive mood so we could be seeing further takeovers.
INTERFACE LAUNCHES NEW PARTNER PROGRAMME
LEGAL NEWS IN BRIEF
MERRILL SETTLE DOTCOM LAWSUIT - Merrill Lynch has settled a claim from one of its brokerage clients for $400,000 after the client bought shares in internet company InfoSpace (its share price subsequently collapsed from $132 to $4) on the strength of a "buy" recommendation from Merrill's internet analyst Henry Blodget. Although Merrill has admitted no wrongdoing under the terms of the settlement, it is understood the client's claim is based on the fact Blodget failed to disclose a potential conflict of interest as Merrill was advising another dotcom company on its takeover by InfoSpace.
KOTONOU OUT AT E-COMSPORT - Angelos Kotonou, the founder of the UK dotcom E-Comsport has resigned from the company's board so he can focus on fighting a £10 million lawsuit being brought against him by the internet incubator New Media Spark. New Media Spark alleges that E-Comsport was improperly floated because its finances were supported by unauthorised loans - Mr Kotonou denies the allegations.
MOVIE TRAILER CASE HEADING FOR COURT? - Buena Vista Home Entertainment, part of the Disney group, is expected to go to court next week to ask a judge to stop trailer distributor Video Pipeline from running parts of its trailers for Disney movies on the web.
MICROSOFT CASE LATEST - Microsoft last week filed a motion opposing a government request to speed its antitrust appeal. This follows a move by the US Justice Department asking the US Court of Appeals for the District Columbia Circuit to forgo the normal 52 day waiting period before returning the case to a lower court. The DoJ move is being seen as possibly clearing the way for the government to seek injunctions that could delay the scheduled October 25 release of Windows XP. Meanwhile Microsoft has itself petitioned the appeals court to rehear part of its antitrust case. Microsoft has asked the court to readdress the finding that combining the Internet Explorer browser with the Windows operating system violated antitrust law. "Through this petition we are making a good-faith attempt to seek clarification on the issue of commingling," the company said. And, by way of a further twist, the DoJ is expected to meet with representatives from Microsoft's lawyers Sullivan & Cromwell later this week in Washington DC to hold talks about talks about settlement negotiations.
NAPSTER GETS A REPRIEVE - The 9th Circuit Court of Appeals in San Francisco has overturned an earlier decision by the original trial court ordering the online music company Napster to block all song trading through its service, unless it could block 100 percent of the songs that record labels had identified as copyrighted. The court granted Napster's request for a stay from Judge Marilyn Hall Patel's order that Napster remain offline until it could guarantee it is blocking all copyrighted music unauthorized for trading. Napster, which says it can now block more than 99 percent of unauthorized songs on its service with new audio fingerprint technology it is testing but could not guarantee 100 percent success, would have effectively been closed down until at least September if the appeal had failed.
INDUSTRY NEWS IN BRIEF
NEW VP FOR LEGAL PORTAL DEVERLOPER - Staying in the realms of legal portals, SV Technology Inc, the US developers of the LawPort system has hired Daryl Teshima as the company's new vice president of knowledge management. Teshima joins SV from 800 lawyer firm Gibson, Dunn & Crutcher, where he was the lead knowledge management lawyer. In his new position Teshima will help legal organizations develop systems and processes to combat information overload. "Finding a critical piece of information is like searching for a needle in an ever expanding, digital haystack," said Martin Metz, CEO of SV Technology and himself the former CTO for Brobeck, Phleger & Harrison. "Daryl is a widely recognized expert in legal knowledge management field. He has remarkable breadth of experience in making law practice more efficient." www.svtechnology.com
E-DISCOVERY SPECIALIST SECURES FUNDING - Fios, a US provider of electronic discovery, antitrust review, and merger & acquisition due diligence services to US law firms and government agencies, has just raised $10.1 million in a second round of institutional funding. The international mix of investors was led by Fluke Venture Partners and included 3i, Banyan Capital Partners and Velocity Capital. Fios also offers services and technologies - what would be called virtual dataroom services in the UK - that help expedite the due diligence review process by quickly identifying and presenting relevant electronically stored information. www.fiosinc.com
PHELEN JOINS ELITE UK - Simon Phelan has been appointed Elite's new northern regional sales manager with responsibility for Scotland and the North of England. Phelan has an extensive track record in the UK legal IT industry, dating back to the 1970s with Kienzle, later to become Axxia, and latterly Miles 33.
EVERSHEDS IN BUTTERWORTHS DEAL - UK law firm Eversheds has signed a major online content deal with Butterworths Tolley (part of the LexisNexis group) to provide tailored legal information direct to the firm's clients' desktops. Kevin Doolan, Eversheds' head of e-strategy said: "It is fantastic to have Butterworths Tolley on board and we are now beginning a test phase with clients and expect to launch the site in the autumn. Everyone is aware of the huge online resources Butterworths Tolley has - not just in providing online legislation and case reports but also a whole library of market leading textbooks and journals. It is a real coup for us to be able to bring all this to our clients." The Eversheds' initiative was prompted by a realisation that many inhouse legal departments are poorly resourced in terms of legal library facilities and that the firm could usefully offer its clients access to such a service.
THE PADDY ASHDOWN CASE - HUMAN RIGHTS VERSUS COPYRIGHT
The basic facts concerned a confidential record of a meeting held at 10 Downing Street on the evening of 21 October 1997 involving discussion between Labour Party and Liberal Democrats politicians for the review of the voting system, which were thought to have been obviated by the landslide Labour victory at the May 1997 General Election.
The record was made by the then leader of the Lib Dems, Paddy Ashdown. The record was secret and confidential. Among others, the meeting was attended by Tony Blair and Peter Mandelson. It was dictated as minutes and later typed by his secretary. Only two copies were made: one was kept in his diaries in his constituency in Yeovil and the other was read by a few of his closest advisers and was then shredded.
When Ashdown decided to resign two years later he wanted to publish his diaries. Some of the material was shown on a strictly confidential basis to eight members of the press. Nothing followed until the Sunday Telegraph published what it called a 'leaked document' and 'secret record' as a front page story on in November 1999. Part of this consisted of several verbatim quotations from the minutes. It was in respect of this portion of the publication that Ashdown claimed copyright infringement. Once again we are grateful to Louis Joseph, the head of intellectual property at London law firm Kaltons for providing this commentary...
The Court of Appeal in Paddy Ashdown -v- Telegraph Group Ltd [2001] EWCA 1142 (19 July 2001) has fully reviewed the question of whether the Human Rights Act 1998 (HRA) affects the protection afforded to owners of copyright under the Copyright, Designs and Patents Act 1988 (CDPA).
The High Court had rejected the defendant's contention that when considering whether an actionable breach of copyright has occurred, the courts must now have regard to the right of freedom of expression conferred by Article 10 of the European Convention of Human Rights (thereby requiring the Court to give individual consideration to the facts of each case in order to assess the impact of Article 10). It held that the CDPA already strikes the appropriate balance between copyright owner's rights and freedom of expression.
The Court of Appeal observed that, given that the exclusive rights of a copyright owner are essentially negative, copyright is antithetical to freedom of expression. However, copyright does not normally prevent the publication of the information in the literary work. Only the freedom to express that information using the copyright owner's verbal formula is
prevented by copyright.
The Court agreed that the CDPA allows 42 circumstances (including criticism, review, news reporting and 'fair dealing') whereby copying material does not infringe copyright. These reflect circumstances in which freedom of expression is already recognised, in effect those in which freedom of expression trumps copyright protection.
Article 10(2) of the Convention declares that restrictions on the exercise of the right of freedom of expression are permissible if they are (1) prescribed by law; (2) for the protection of rights of others; and (3) are necessary in a democratic society. It was held that the CDPA does satisfy all the requirements of Article 10(2), because the needs of a democratic society include the recognition and protection of private property. Such property includes copyright.
Be that as it may, the Court found that the jurisprudence developed in Strasbourg suggests circumstances in which freedom of expression might even protect an individual who reproduced the very words spoken by another. Accordingly, there will be occasions when it is in the public interest not merely that information should be published, but that the public should be told the very words used by a person, notwithstanding copyright. However, the Court of Appeal could see no reason in principle why the author should not be compensated, in such circumstances even if an injunction could not be granted. Freedom of expression should not, however, normally include the right to make free use of another's work. The Court of Appeal concluded that public interest might on rare occasions require the verbatim publication of copyright material. Rare as these occasions may be, the HRA (and the Convention) does impact on the protection granted by the CDPA to copyright owners.
INDIA DEBATES ONLINE LEGAL SERVICES
According to local Bar Council rulings, Indian lawyers are still not permitted to advertise in any media and disciplinary action has recently forced some web pioneers to shut down their sites. The Indian Bar Council fears that the web and other forms of advertising, together with opening the market to foreign law firms, will leave Indian firms unable to compete against the muscle of large foreign firms.
To provide a global context for this debate, affecting many newly industrialised countries, SILF invited guest speakers, Derek Benton of Martindale-Hubbell and Christopher Davis, of
London law firm Davis & Co, to address the conference on 'Developing legal services in the Internet Economy'.
Despite a strong case for liberalisation proposed by Arun Jaitley, Union Minister of Law, Justice and Company Affairs, the issue of lifting the barriers to foreign competitors still gives rise to protectionist sentiments within the Indian profession. The majority still resist the entry of foreign law firms, which according to WTO agreements, to which the Indian government is a signatory, must take place by 2003.
"India's pursuit of an open door economy and commitment to further develop its considerable computer software and programming industries, are probably indications that the entry of foreign competition is just a question of time", said Benton. "Unless the profession is permitted to advertise and develop modern marketing techniques, they will be at a real disadvantage."
LOTIES SHORTLIST PUBLISHED
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