Drafting: Typographical and clerical errors

By Jordan Hatcher | Published: 2 August 2011

Another example of a seemingly meaningless contract clause:

All typographical and clerical errors are subject to correction.

Is this type of clause really necessary? I say no.

If it truly is a “typographical or clerical error”, won’t both parties pretty much agree to its interpretation anyway? If they’ll agree anyway, why would you need to clarify this with a specific clause in the contract?

However the parties could dispute as to whether it is an error at all, such as perhaps the (dreaded-but-all-too-often) mismatch of spelled out versus number:

The notice period is fifteen (30) days

If the two parties disagree as to whether they meant 15 or 30 days, then it wouldn’t be a [typographical][http://www.thefreedictionary.com/typographical+error] or [clerical error][http://legal-dictionary.thefreedictionary.com/Clerical+error], and so wouldn’t be solved by this clause.

Seems like fluff to me and not worthy of sticking into your contractual boilerplate.

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Rackspace Cloud – you agree to agree with us

By Jordan Hatcher | Published: 24 June 2011

Another post in the series, Adventures in IT Contracting.

Rackspace’s Cloud Terms of Service has this term:

"The event of a dispute between us regarding the interpretation of applicable law or the AUP, Rackspace's reasonable determination shall control"

Nice! So you can’t argue about the interpretation of the law or the AUP, though of course you could always argue that Rackspace’s interpretation was unreasonable, provided of course that this clause is enforceable. I’m no consumer contracts experts, so would be good to hear whether this was enforceable in a B2C setting, and of course in a B2B setting as well. Seems like you should have a fundamental right to argue about the interpretation of the law, if not the AUP.

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International harmonisation for patent exceptions and exclusions

By Jordan Hatcher | Published: 16 June 2011

Last month I had the pleasure of attending Prof. Lionel Bently‘s talk on patent exclusions and exceptions as part of UCL’s Current Legal Problems Lecture Series.

Some interesting point about the history of patent exclusions and exceptions:

  • Naturally there was some large variation internationally prior to TRIPS. A 1988 WIPO survey of the then 97 Paris Convention members revealed some fun exclusions, such as for Cosmetics (Bulgaria and Republic of Korea).
  • In addition to TRIPS, the European Patent Convention (EPC), the PCT (through how search is handed in Article 39), and even WIPO’s Model Law 1979 have contributed to some harmonisation on exclusions.
  • One interesting point — the Community Patent Convention’s Article 27 contributed to some harmonisation of exceptions (as a sort of model law) even though it was never enacted.

Prof. Bently then went to outline some different rationales for having exclusions and exceptions, and to compare the approach — I do hope he makes his slides available. In any event, this lecture was tied to a study done for WIPO that he was a part of about (what else) patent exclusions and exceptions for the WIPO Standing Committee on Patents: Experts’ Study on Exclusions from Patentable Subject Matter and Exceptions and Limitations to the Rights – SCP/15/3.

Prof. Bently outlined some interesting conclusions for “international lawmakers and interpreters” from the experiences with the report:

  • Facilitate interaction between exclusion/exception provisions. If excludable under TRIPS Article 27 then it should be possible to operate an exception under Article 30.
  • There are dangers with interpreting TRIPS Article 30 [the three step test for patents] narrowly. In particular “limited exceptions”. It could impede positive developments.

For me, this leaves open two normative questions of patent exceptions and exclusions:

  1. Should we have further harmonisation of exclusions and exceptions for patents within the International IP System?
  2. If we should have further harmonisation, who should deal with emerging questions in this area, particularly as they apply to morality, especially in light of changing technology?

I certainly don’t know the answers to either one of these, but I think that they are very interesting questions. Some points to consider:

  • TRIPS uses a minimum standards approach and thus sets a floor but not a ceiling for protection. Protection is very much the perspective taken by TRIPS on IP, and this means that the exclusions in TRIPS are optional, for example, and states can protect these areas if they choose.
  • Because TRIPS leaves exceptions and exclusions as options, this means that they can be overridden by regional Free Trade Agreements (FTAs).

As a result, should we look at making patent exceptions and exclusions mandatory and not optional? Not sure I know the answer, but if we want true harmonisation, it’s perhaps the optimal approach.

Posted in International IP Systems (IIPS), Patents | Leave a comment

Tasty links: up to 12 Jun

By Jordan Hatcher | Published: 12 June 2011

Stuff you might like to check out on teh internets for 11 Apr through 12 Jun:

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The Open Wireless Movement – the last 100 feet problem

By Jordan Hatcher | Published: 13 May 2011

Peter Eckersley at the EFF recently issued a call to action on building an open wireless movement.

https://www.eff.org/deeplinks/2011/04/open-wireless-movement

My summary — We should encourage sharing of open wireless networks in order to increase the availability of cost-free and ubiquitous internet access. In order to get there we need:

  1. Devices that allow easy sharing of your own wireless network while maintaining security and traffic priority.[1]
  2. Networking protocols that allow users of open wireless networks security and privacy
  3. As the above two start to come into place, we also need to change the culture to default on sharing.

What the legal community can do

So this movement addresses, not even the last mile of the network, rather the last 100 feet or so of the home WiFi network.

What can we do on the legal side of things? Make sure that the providers of those last 100 feet – individuals sharing their broadband connections – have access to the same legal protections as ISPs for third party access via their network. Individuals, like ISPs, shouldn’t be responsible when merely providing a conduit for access.

Move the open wireless idea upstream

I’d like to suggest that we need to start looking at ways to democratise and crowd source more of the telecommunications infrastructure back behind the last 100 feet. What about exploring wireless mesh networking as ways for local traffic to stay local?

For the legal types, I wrote about the legal aspects of wireless mesh networking in a paper in 2005. I believe “Individuals as ISPs” is likely key to making this happen as well.

[1] The only place where traffic shaping sounds good to the consumer!

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Gikii goes Swedish – 6th Gikii in Gothenberg

By Jordan Hatcher | Published: 4 May 2011

The 6th GikII conference, a gathering of geeks and law, is to be held at the IT University, Gothenberg, Sweden on June 26-28 2011.

Abstracts can be submitted until May 15th 2011.

The organisers, Lilian Edwards and Mathias Klang have apparently “already received submissions on, inter alia, the Twitter accounts of Abba, the legal personality of zombies, robot ethics and liability, law and virtual pornography, soft law in World of Warcraft, whistleblowing after Wikileaks, and the legal implications of time (or possibly the chronological implications of law)”.

If you have some off-the-wall legal paper screaming for the light of day and can make it to Sweden, submit! In case you’d like more:

In brief it is a small (c 40 people) blue-skies workshop, devoted to short, interesting papers about the intersecting worlds of law, technology and popular culture (not necessarily all at once). It has also been described as “stand up comedy for lawyers” and “like all the other conferences, only without the boring papers”. It thoroughly encourages non lawyers and interdisciplinary presentations. Powerpoints are (almost always) essential, LOLcats are ubiquitous, and geekery is more or less mandatory. A knowledge of recent iterations of the vampire genre, the works of Alan Moore and a healthy cynicism about the Singularity are also often helpful :-)

GikII is traditionally free (as in free-beer), and this includes the conference dinner (always good fun). So submit already.

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Tasty links: up to 8 Apr

By Jordan Hatcher | Published: 8 April 2011

Stuff you might like to check out on teh internets for 2 Mar through 5 Apr:

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Norwegian Open Data License – draft now out

By Jordan Hatcher | Published: 1 April 2011

(Via Jonathan and Ton at EPSI), Norway has announced a draft open data license for public sector information, the Norsk lisens for offentlige data (NLOD). This is a big step for open government data in Europe.

It’s naturally in Norwegian, however Google Translate to the rescue — full English translation at end of this post.

Note that there is also an annotated version, and a post in English about the process.

Some comments and initial impressions on this translation:

  • Great that they are CKAN users!

  • It is absolutely fantastic that they’ve gone such an open route. I do want to push a bit further and query why it can’t be even closer to the public domain and make attribution a “community norm” that is strongly suggested, but not legally required. How does requiring attribution as a legal rule help advance the goals of releasing the information?

  • Also, and this questions is just as much for the open government community as for Norway, do we need another open data license? Are we just going to increase license proliferation? Most of the non-copyright issues present here (and in the UK’s OGL) could potentially be separated out into two different docs — one for the specific notifications on personal data and similar issues; and the second an established public open data license.

  • I’m wondering what the proposed compatibility with the “Open Government License” means in practice? This is a specific license written by the UK government and not a public license hosted by an institution such as Creative Commons or Open Data Commons for use by anyone that comes along. What if another government copies the whole template for their own license? Is that compatible? What if another country copies some, but not all, of the OGL for their own license? Will that come under this compatibility? Will Norway be monitoring the available licenses in order to update their compatibility list?

  • It is great that they’ve made this license compatible with CC-BY and Open Data Commons Attribution. I do wonder though what that compatibility means (for these and the OGL) and if they could be more specific. If the intent is to allow users to relicense under either of these two licenses, then they should make the very clear (either here or in a FAQ) for users. This could of course be a translation error and in Norwegian it could come across as perfectly clear.

Note that typically you would do a dual license if you want people to use and reuse content under multiple licenses — this means that they have their choice of which one to take the content under from the beginning.

Read More »

Posted in Creative Commons, Open Data, Open Data Commons, Open... | Tagged , , | 1 Comment

Hargreaves review: Submissions by Friday 4 March

By Jordan Hatcher | Published: 2 March 2011

The Hargreaves review, more officially known as the “Independent Review of Intellectual Property and Growth” has published a call for evidence, which calls for a response by 4 March.

For more details of the kinds of evidence the review is looking for, please see the call for submissions at:

http://www.ipo.gov.uk/ipreview/ipreview-c4e/ipreview-c4e-paper.htm

Posted in Copyright, Patents, Policy, Trademark | Tagged | Leave a comment

Tasty links: up to 1 Mar

By Jordan Hatcher | Published: 1 March 2011

Stuff you might like to check out on teh internets for 24 Feb through 1 Mar:

Posted in Teh Internets | Tagged | Leave a comment