IN THIS ISSUE
New Microsoft deadlines - Fools & their money - Publishing news - ECHR buys Tikit - Legal news in brief - Back in old media alley - Could US decision have UK relevance - Industry & Professional news in brief - Next issue: 18.10.2001

NEW DEADLINES SET FOR MICROSOFT ANTITRUST CASE
Judge Colleen Kollar-Kotelly, the new judge in the Microsoft antitrust case (and now apparently known as MS Antitrust Judge 2.0) has given Microsoft and the Department of Justice until 12 October to try to settle the case. If agreement is not reached by then, the judge proposes to appoint a mediator to oversee the talks, subject to a 2 November deadline. If terms still cannot be agreed then a new trial to decide the penalties is scheduled to commence on 11 March 2002.

FOOLS AND THEIR MONEY
The consultancy KPMG has just published a report that claim UK businesses are wasting £17 billion a year on IT expenditure. The study found that just under half the respondents did not know what their IT budget was and over 80 per cent had no idea what their cost savings from IT asset management were.

One of the biggest problems identified was the lack of accountability, with many departments duplicating orders for hardware and software. KPMG gives the example of one company which thought it had somewhere between 900 and 1200 PCs and about 8 servers running only Microsoft software. Whereas they actually had 1400 PCs, 5 servers and, in the words of KPMG "enough different software to stock a branch of PC World, not to mention a soft porn collection on one of the IS/IT servers."

The report also highlights the example of another large organisation that "bought copies of MS Project for each individual on the team each time a new project was started, and then forgot about them when the project was completed. Given that the organisation was running some sixty projects a year, with a hundred people in each team, their unnecessary costs were huge."

It is often argued that law firms do not spend enough money on IT. Maybe the real problem is that they are spending it on the wrong stuff?.

PUBLISHING NEWS
LAWTEL LAUNCHES SPECIALIST BULLETINS - As part of Lawtel's ongoing commitment to develop a portfolio of products and services for the specialist, a series of Specialist Bulletins has just been launched. Now included in Lawtel EU subscriptions, Lawtel Specialist Bulletins are delivered weekly by e-mail and provide a detailed round-up of the latest developments from the UK and EU. Bulletins are available in the following areas: Employment, TMT (Technology, Media and Telecommunications), Intellectual Property, and Competition. Bulletins include: Editor's overview of the week's latest developments, Notices, Case Law, Background Information, Legislation, Academic and News Articles.

Lawtel Specialist Bulletins can either be printed or browsed as an online resource, enabling users to take full advantage of the hypertext links provided, including links to the full text of all available documents held on official UK and EU web sites. Links are also provided from cited articles straight to the original source. In addition, Lawtel subscribers can also access the full text of all cited case law, legislation and articles published on Lawtel UK and Lawtel EU. Where full text is not available electronically, Lawtel can deliver the hard copy version.

WESTLAW BRANCHES OUT INTO CRIME - Sweet & Maxwell this week launches its new online criminal law service Westlaw UK Crime. Along with daily updates, the service will include online access to leading criminal practice texts, including Archbold, the Criminal Law Review and the Criminal Appeal Reports. The launch has been timed to coincide with the imminent publication of Sir Robin Auld's review on the operation of the criminal courts system in England and Wales.

EUROPEAN HUMAN RIGHTS COURT BUYS TIKIT
The European Court of Human Rights (ECHR) in Strasbourg has purchased a range of document and knowledge management software products and system development tools from the Tikit Limited that will provide the foundations for Phase II of the Court's existing Court Management Information System (CMIS), originally developed by Tikit.

In addition to supplying the new software, Tikit is also working with the ECHR on the development of this phase of the project, which is expected to be completed by the end of this year. Tikit and the ECHR worked together on the initial development of CMIS - this has already gone live and provides a framework for electronically processing applicants' case files, from initial entry as a provisional file through to a final judgement, where the Court rules whether there has been a violation of the European Convention on Human Rights.

Phase II of the project will see CMIS integrated with an upgraded version of the Court's current public information system (HUDOC). Together, these will create an internet portal providing the public within the Council of Europe's 43 member states with access via the web to an extensive database of information about the Court's activities, including the current progress of individual cases, through to judgements and the status of measures adopted by governments to implement the Court's judgements.

The ECHR, which in 1999 won a major award for its original HUDOC system (which provides the public with internet access to its judgements) says it is confident the completed system will show how a modern international court can process thousands of cases annually, while giving the 800 million citizens in its jurisdiction access to detailed information about its activities via the internet. The ECHR web site is at t www.echr.coe.int/

LEGAL NEWS IN BRIEF
INTEL NAMES VIA IN PATENT SUITS - Intel has filed four lawsuits in three countries against Taiwan based Via Technologies and several of that company's business partners. The suits, filed in Hong Kong, Germany and the UK, allege that Via's C3 and P4X266 chips infringe eight Intel patents. Intel has already commenced legal action in US courts against Via. A spokesman for Via said the Intel claims were without merit and the company has responded by filing suits against Intel alleging patent infringement and anti-competitive behaviour.

AMAZON SUES OVER FORMER FINANCE OFFICER - Amazon.com has commenced legal proceedings against eBay after former chief financial officer Christopher Zyda - described as "a trusted member of Amazon's select inner circle of top executives" last month joined eBay as vice president of financial planning & investor relations. Amazon's lawyers say the defection could dent Amazon's sales and jeopardize its long term business strategy.

MORE ACTION AGAINST DOWNLOAD SITES - The RIAA (Recording Industry Association of America) and lawyers for Hollywood studies have commenced legal proceedings against three more file swapping web sites that have popped in the wake of the Napster litigation. The three sites are MusicCity, Kazaa and Grokster. The RIAA claims that copyright material available on the MusicCity site includes the new Bob Dylan album and the movies Planet of the Apes and Legally Blonde.

VIVENDI UNIVERSAL LOSES COPYRIGHT CASE - In a summary judgement delivered in the US District Court in New York, the federal court ruled that Universal Music Group, a Vivendi Universal record label, had failed to obtain the proper licences from music publishers and songwriters before making their works available as streaming audio tracks on its Farmclub.com web site. The plaintiffs, including representatives for Rodgers & Hammerstein, Leiber & Stoller, Irving Berlin Music and Elvis Presley Music, are seeking damages of $150,000 per track. The judgement did not rule on damages. Universal says it plans to appeal as it believes its streaming audio service was authorised by existing licencing deals and copyright provisions.

NOVELL SUES MICROSOFT OVER ADVERTISING - Novell this week filed a lawsuit against Microsoft alleging the company had made "false and misleading statements about Novell and its products in violation of state and federal laws". The move follows a Microsoft advertising campaign which seems to imply that Novell is about to drop its NetWare operating system. The ads took the form of a breakfast cereal packet and read: "What's the expiration date on that NetWare platform? As a result of the recent Cambridge Technology Partners merger, Novell is shifting its focus from software development to consultancy services. You're left with a server platform without the full support of its manufacturer. Which means increasing costs as it rapidly becomes obsolete, forcing you to implement time-consuming retrofits."

Novell described the campaign in the following terms: "These questions and statements are completely false and misleading. Microsoft has tried to create a fictitious end of life for NetWare to create fear and uncertainty within Novell's customer base and to discourage future customers from doing business with Novell." Novell is claiming "corrective advertising", the pulling of the current advertising and damages by way of a remedy.

MEANWHILE BACK IN OLD MEDIA ALLEY
Benjamin Elliot, a a nephew of Camilla Parker Bowles has accepted "substantial undislosed damages" from the UK's Sunday People newspaper over an article that alleged he had stripped naked and had sex with Jade Jagger, the daughter of Mick Jagger, on a public beach in Ibiza. The newspaper now accepts the story was completely false and that Elliot was not the man in the photos accompanying the story.

And, the UK Press Complaints Commission has upheld a complaint against OK! magazine by JK Rowling, the author of the Harry Potter books, after the magazine printed pictures captured with a long lens camera of Rowling and her eight year old daughter Jessica on holiday on a private beach in Mauritius. The Commission said OK! had beached two clauses of its code of conduct covering privacy and the protection of children from unauthorised media interest.

COULD US DECISION HAVE UK RELEVANCE ?
Louis Joseph of Kaltons in London has supplied the following commentary on a recent US decision that could provide a useful precedent for UK courts...

In a legal environment where there is still very little law directly designed to govern the internet (although it is growing all the time), existing laws have to be interpreted to fit the circumstances of trading on the internet. In other words, much of the work in this area is sophisticated "inspired guessing." This is no secret - the skill is in understanding both the legal principles and the nature of the internet - the more you do, the more likely it is that the "guessing" will be correct. Where the laws are similar, we have regard to case law in other common law jurisdictions such as the US and Australia.

The case of Christopher Specht -v- Netscape & AOL in the federal district court of New York (3 July 2001), applying broadly the same common law principles as apply in England, decided that a company could not rely on terms and conditions on its web site unless the buyer had had the opportunity to read them. The only way of establishing that was to make sure they had no choice but to run through them, even if they did not actually read them. No doubt the court has regard also to the fact that most people do not bother to read things on web sites, so anything less than the most "in your face" presentation of terms runs the risk of being ignored by the court altogether.

In contract law, some terms are well-established principles and reasonably certain while others are less clear or intentionally vague to allow for flexibility in differing circumstances. For example, clauses purporting to limit the seller's/supplierÕs liability are only enforceable insofar as they are "reasonable" (or "fair" when dealing with consumers). In deciding reasonableness or fairness, the court has to look at the individual facts of each case. So what may be enforceable in one case will not necessarily be so in another, even if the terms are used by two different companies in the same industry.

In some cases, the enforceability of the individual clause may depend upon how clearly it has been spelt out to the buyer (ie whether it is in plain English and whether it is prominently shown and not buried in fine print). Some terms can never be enforced even if you do everything to bring them to people's attention. However, this latest case demonstrates that no matter how well drafted your site's terms of business are, they will be ignored unless you follow some basic rules.

A link from a page to another page containing terms (the link perhaps stating "terms and conditions") is not enough. Reference to terms without any link is unacceptable even though it has been in non-electronic dealings.

The only way to ensure that your terms of business are enforceable is to be able to demonstrate that buyers have had to scroll down them. Obviously you cannot force people to read them - a reading comprehension test at the end is a little over the top! Most people do this using a separate pop-up window containing the terms and an "I accept" button at the end. A key element in that process is to prevent the buyer from accepting (eg by pressing "enter" on the keyboard) until he has scrolled down to the end of the terms.

Although an English court has still to decide the issue, the case may well be followed here. It is certainly good practice to abide by it in the interim and even if a more generous interpretation is eventually given under English case law, it will be a brave person who ignores the risk that a harsher judge might take a stricter view in future unless a higher court had ruled on the matter fairly conclusively. Having said that, we can only hope that the courts will have regard to commercial reality and not impose excessive restrictions. Above all, why should tougher standards apply on the internet than in real world dealings? If you can incorporate terms by reference to them, without their having to be read in real world dealings, why not also on the internet? Of course, sometimes incorporation by reference is not effective in the real world either.

INDUSTRY & PROFESSIONAL NEWS IN BRIEF
iMANAGE IN LAW.COM DEAL - iManage and RealLegal, the applications division of Law.com, have announced that RealLegal's Practice Manager software will soon be integrated with the iManage WorkSite application suite to provide legal customers an integrated, web based practice and document management solution so users will be able to access documents, client communications, court cases and other daily contact activities through a single interface. Law.com will also will provide a connector to its legal and editorial content as one of iManage's iConnect partners through the iManage WorkPortal application.

DURLACHER HIT BY DOTCOM DISASTER - Durlacher, the investment bank that supported many of the UK's would-be dotcom stars, including Desktop Lawyer, has just reported losses of £44.9 million, compared with a profit of £12.2 million in 2000, for its trading year to 30 June. The bank has written off £17 million on a portfolio of unquoted technology stock and made provision for a further £17.5 million for expected write offs this year. The bank is now valued at £18 million, compared with more than £2 billion at the height of the dotcom boom.

McFADDEN QUITS LEGAL VOICE - Dallas-based Tracie McFadden Burns, one of the best PRs we have encountered in the US legal IT sector, has quite the Legal Voice consultancy she previously worked with to go it alone as an independent marketing consultant. The split was amicable - McFadden Burns says it was simply time to move on.

LONDON FIRM PIONEERS DIGITAL SIGNATURES - London property and internet lawyers Kaltons has notched up what is believed to be a legal first by deploying the ViaCode digital certificate security system to streamline confidential client communications, including conveyancing. It will initially be used to safeguard internal communications prior to using it to secure direct client contact by email and through the web. In addition to multiple client certificates, Kaltons will also be using a ViaCode web server certificate to protect web based transactions. Kaltons senior partner Maitland Kalton said the certificate security move is seen as particularly important for property conveyancing, an area traditionally tied up in paperwork.

US AMBASSADOR ON E-COMMERCE - During a forthcoming visit to the UK, the former US ambassador to China David Arron will be giving a presentation at Emmanuel College, Cambridge on the potential barriers to international e-commerce and trade caused by conflicting national legislation. The event is sponsored by the London office of Dorsey & Whitney (020 7588 0800) - Aaron is an advisor to the firm's Washington DC office - and the topics to be covered will include: the US safe harbor regulations versus the EU privacy directive, consumer protection and privacy, taxation and jurisdiction.

AUSTRALIAN LEGAL SOFTWARE SUPPLIER IN CREDIT DEAL The Australian legal software manufacturer Midware has announced it will link its customers to the database of credit reference supplier Credit Advantage. As part of the deal Midware will install automatic links to Credit Advantage's database in its software and on its web site in exchange for royalties. Credit Advantage has more than one million commercial credit files and 11 million consumer credit files on its database Midware customers will also gain access to Credit Advantage services such as Australian Securities and Investments Commission searches, land titles searches and REVs vehicle encumbrance registers.