Paul Jacobson

Mindful of Tony Lankester’s valid comments, this is a rant! It is my opinion and is not researched and I haven’t taken much care to fact check with all parties concerned.

The case between QVC (Quality Vacation Club) and Donn Edwards just irks me for a number of reasons. It is also a lesson in how to deal with litigation thrust on you by bullies. While I respect Donn’s desire to handle this fight himself, he was at a distinct disadvantage from the start because he is not a lawyer and he is playing on a structured and complex playground.

The way QVC’s lawyer managed to take an order against Donn at the start of the matter to prevent him from publishing defamatory remarks is a good illustration of this. While a law abiding person should have an issue with a court order saying he can’t do something illegal, Donn should have opposed this application. QVC’s attorney also should have taken the time to at least tell Donn what time the application would be heard and in which court. Attorneys do have an ethical duty towards unrepresented parties to do at least that much. I wouldn’t be surprised if QVC’s legal team omitted to inform the judge that Donn had made numerous enquires about whether the matter was going to court and, if so, which court and what time. The Johannesburg High Court building contains dozens of court rooms and it isn’t that easy to figure out where something is going on.

QVC’s effort to have Donn found in contempt of court follows on from that initial interim court order and the argument is likely to be that he continued to defame QVC and its trustees in his blog and is therefore violating the court order. I hope that Donn challenges this application properly because this is where it is important to argue that even if what he has been posting is defamatory, it is excusable. The reason I say this is because of how defamation works. Even if QVC can prove that Donn’s blog posts are defamatory, Donn has a range of defences he can raise which would effectively excuse the defamation. Two of these defences include the argument that the comments are true and in the public interest and the other is that the comments are fair comment. In a way, the application to have him found in contempt could be where this whole thing is decided so he (and the rest of us) would be well served if the big guns are thrown at that application. I don’t know how far those proceedings are but I have spoken to Donn and he does have someone assisting him so I am sure he has that in hand.

Generally speaking I’d like to see QVC go down in flames. Like a great many people, I am routinely called about some prize I have one based on a raffle ticket I was stupid enough to buy in 2005 or so (I know this because these idiots consistently get my name wrong). I don’t know which company is behind those calls. It may be QVC or some other crowd. Whoever it is, having one less company like this around is a good thing.

This case also highlights the need for a strong EFF-style organisation in South Africa that has the funding and the resources to get involved in cases this important. We do have the Freedom of Expression Institute which does excellent work. Unfortunately their resources are limited and they can’t take all of these cases on. I am sure this is a source of frustration for them.

I would like to see a strong defence mounted to QVC’s proceedings. I see this as being a test case for the law of defamation in the context of online publishing and blogging in particular. The legal principles are fairly well established but we need to see how the courts will apply them to blogs and other forms of social media. At the very least we need confirmation they will be applied in a way that protects freedom of expression.

Technorati Tags:
defamation, donn edwards, qvc, high court, quality vacation club, freedom of expression

I am currently doing some research for a project I am working on and I tried my hand at creating a Google custom search engine that references the resources I was accessing individually. The result is pretty cool.

(there should be a gadget above this line … it didn’t show when I published this post, hopefully it will be visible by the time you see this)

If you are a lawyer or law student or know of really good South African legal resources, let me know and I’ll add the site to the search engine.

Technorati Tags:
google, search, custom search, legal research resources, legal research

People ask me what a new media lawyer is/does. Here is an answer (inspired by the wonderful Max Kaizen):

One of the more meaningful developments on the Internet in recent years is the renewed emphasis on personal relationships in business in particular through an array of social media tools and services. While the concept of a more personal marketplace that the social web promotes is not new, these tools and services are and they potentially raise a number of legal issues and risks which companies ought to bear in mind and cater for.

The social web is largely about expression and sharing. From a legal perspective the issues that may arise as a result of this expression and sharing may include general freedom of expression (including defamation concerns), content licensing, privacy and unlawful competition. In some cases the consequences of not catering the for risks which may arise can be severe and could include costly copyright infringement; compromised business relationships by errant employees and privacy infringement.

As with any endeavour that has legal ramifications, it is vital to first be aware of the risks and then to take reasonable steps to guard against or cater for those risks. When it comes to risks arising out of social media focussed projects it is also important to be guided by a lawyer who understands the social web ethos, its tools and platforms because that knowledge informs the best options available in any given set of circumstances. Ultimately it isn’t about fancy lingo or legalese, it is about taking sensible steps to manage the risks that accompany innovative projects. The alternative, ignorance, carries a terrible cost and far more severe consequences.

Technorati Tags:
new media, social media, manifesto, new media lawyer

Ramble on

A complete treatment of this topic would probably take up a number of hefty volumes so this chapter is not intended to cover all aspects of doing business in South Africa. There are many brilliant, knowledgeable and expert writers and professionals in South Africa who could speak far more authoritatively on the range of topics that fall under the general header of “SA Inc and the business of doing business in South Africa”.

Instead I am going to mention two topics which I am both passionate about, regard as two very hot topics in the near future and which are, themselves, are subjects of entire books and which SA Business should bear in mind when doing business in South Africa: privacy and content licensing. These topics are going to be of interest for those businesses which are interested in or involved in the growing social media space.

While content licensing and privacy are the topics that tend to attract the most attention when I chat to business people about them, freedom of expression and unlawful competition are two topics I won’t deal with in this chapter due to space considerations in the context of this blook as a whole but which are arguably equally important. Which topics are more relevant and therefore important to you may be a matter of perspective depending on what your focus may be at a given point in time.

Privacy

Privacy has always been an issue business has had to tackle although not terribly vigorously. Privacy issues in the workplace have often included personal communications and personal relationships in the workplace and have been dealt with through internal policies on issues ranging from the acceptable use of the organisation’s IT infrastructure to policies that deal with the prickly topic of sexual harassment.

The need to give substance to the right to privacy in the Bill of Rights and the increasing amount of personal information that is becoming available both online and offline in all spheres (and the growing need to safeguard that potentially sensitive information) have given rise to draft legislation presently doing the rounds in our legislature.

This is not a new process and in many ways the draft legislation mirrors developments abroad, including in the European Union. Without going into the legislation in much detail (yet another volume in itself), it defines personal information and through a series of voluntary and mandatory mechanisms it seeks to strike a balance between the need to safeguard personal information when processed by public (for example, government bodies) and private (for example, businesses) bodies, the need to protect and give substance to the right to privacy and the desire to facilitate the appropriate flow of personal information.

I use an extract from the draft legislation in a presentation I give on these topics and in which I highlight some of the examples of personal information. Although few people can actually read the extract in the slide because the font is so small, the highlights demonstrate the fairly broad scope of the definition and highlight the need to take a more active interest in how this draft legislation may impact on South African businesses.

An unfortunate consequence of a growing complexity of issues pertinent to business is that it is necessary to introduce a range of measures to reduce and manage the risks that accompany this growing complexity. One of these measures, at least in this context, is a clear privacy policy that informs both internal stakeholders and customers what personal information the company is collecting and how that personal information is being used. These uses are guided by the draft legislation and it is vital that this information be communicated to these people.

The draft legislation also envisages imposing a series of obligations on businesses to secure their stores of personal information and to retain that personal information subject to specified guidelines. Add a range of exemptions and prohibitions to the mix and businesses are facing a far more complex privacy landscape which needs to be navigated with considerable care.

Bottom line: things are about to become really interesting in this space.

Content licensing

For the most part Business SA either doesn’t think too much about copyright or views it as a shield to protect it from the horrors that ravage the intellectual property countryside that include plagiarists and unimaginative bloggers who are too loose with the “Copy” and “Paste” commands.

Copyright certainly has a valuable place in that intellectual property countryside. One of its most important functions is to protect original content and, in the process, it encourages content creators to develop more original content. The difficulty with copyright is that, as a bundle of exclusive rights, it does not always fit in well with the growing social media trend (if you can call it that) and with consumers’ desires and habits.

One question I often ask people is how many of them tend to download or copy interesting content they see on the Web without thinking too much about little things like who owns the copyright in that content and whether consuming that content in that way is consistent with the copyright owner’s intentions and rights. At the risk of oversimplifying the issues, people want to go online and freely share what they find with their friends, family and colleagues. This act of sharing often takes the form of copied text and images being distributed by email, printed out and passed around or even incorporated into blogs and other online social media platforms.

The problem with this tendency, of course, is that many of these uses are forms of copyright infringement and while there are a number of exceptions to general copyright infringement the exceptions themselves are sometimes not terribly clear or helpful.

There is an alternative to simply relying on the protections afforded by copyright and its exceptions to copyright infringement. If your goal, as a content creator, is to ensure that your content is made available to the biggest audience possible within certain parameters which may protect your business model, the integrity of your content or ensure that any sharing perpetuates your open access ambitions then you will be thinking about some form of license for your content. The immediate challenge is how to properly license your content and make sure that the considerations that need to be addressed are, in fact addressed.

One option is to go to an attorney have have a custom made license prepared. A license will grant its user certain rights in the content concerned which, in turn, will enable the user to make use of the content in a way that would ordinarily be prohibited. This has its advantages because you will have a license that does exactly what you want it to do (that is, permit certain uses and prohibit others). The disadvantages include the costs involved and the possible inability to understand the terms of the license unless you have degrees in Latin and advanced legalese.

The second option will be far more appealing to many content creators. Creative Commons licenses are ready made content licences that permit a range of uses of content depending on the license adopted (there are six core licenses). These licenses are customisable to a degree in that you can choose which elements to include in your license to supplement elements that are built into every Creative Commons license, such as the ability to share the content privately, the requirement that authors of the content concerned be attributed properly and the perpetual term of the licenses. The rights granted by a Creative Commons license may include the ability to create a derivative work of the content (something like a remix of a song, perhaps?), the right to exploit a work commercially or perhaps the requirement that adaptations of the content be distributed under a similar Creative Commons license.

One thing for SA Business to bear in mind, especially in the push to integrate social media into an online presence, is that Creative Commons licenses can be powerful tools which can be used to help spread content as widely as possible. This makes a lot of sense where a business has a blog or otherwise publishes its content on the Web with the intention that it reach as many people as possible. Additional protocols like the recently introduced CC+ protocol enable businesses to integrate their commercial licenses into a non-commercial Cretive Commons license. One benefit of this is to present a licensed version of the content that can be freely shared while preserving a commercial model. A good example of a service that uses a similar model is the popular tutorial service, Common Craft.

What I constantly find remarkable about these legal constructs is the very real impact they can have on creative expression. Although copyright was originally intended to protect and promote creative expression, it has become almost synonymous with protectionism and restrictions on content usage. It is unfortunate but it has paved the way for tools like Creative Commons licenses and similar free content licenses to free content creators to express themselves more freely secure in the knowledge that they have struck a balance between sharing and spreading their ideas and passions and, at the same time, ensuring that their content is used in a way that best achieves that expression. Just what form that expression takes and how it manifests will vary from one content creator to another, whether that content creator be an artist, a writer or Chief Executive blogging about his hopes and dreams for his company.

Levelling off

Without a doubt privacy and content licensing are critical issues that SA Business needs to pay careful attention to, especially as more and more local businesses provide services and publish content online. Two topics I wasn’t able to deal with in this chapter introduce further dimensions of complexity and perhaps greater challenges for many businesses: freedom of expression and unlawful competition. These seemingly unrelated topics come together in a very interesting and yet somewhat disturbing way for many businesses in the context of social media in particular and also merit very careful consideration.

One message I try to communicate whenever I speak about these topics is that as much as they may complicate an already confusing landscape, the risks they represent can (and should) be managed and, in the process, reduced. Doing so requires a little research and planning but the benefits of these foundational steps will soon become apparent in a variety of ways, all of which add to the tremendous promise and potential of doing business in South Africa.

Now read the rest of the blook chapters:

Introduction
1. The new South Africa – is it real?
2. Is SA rich or poor?
3. What the world thinks of South Africa and what our global opportunities are
4. The importance of each individual’s contribution collectively
5. SA Inc and the business of doing business in SA
6. The beauty and grandeur that surrounds us
7. The importance of technology in SA’s global emergence
8. Building brand South Africa
9. Making the most of SA’s creative talents and abilities
10. Innovate for a better South Africa
11. The role of the younger generation in SA, and what we need to do to support them
12. Connecting South Africa – Communities that transcend technology
13. We are African – the role of collaboration in South Africa’s growth

Chapter 5, SA Inc and the business of doing business in SA by Paul Jacobson is licensed under a Creative Commons Attribution-Non-Commercial-No Derivative Works 2.5 South Africa License.
Based on a work at pauljacobson.org.

Technorati Tags:
content licensing, copyright, creative commons, south africa, blook, sa blook, opportunities, privacy, legislation, sa business

Okey dokey, so Feisty Bev tagged me in this meme so here goes …

Tagging game rules

1. The rules of the game get posted at the beginning.
2. Each player answers the questions about themselves.
3. At the end of the post, the player then tags 5 people and posts their names, then goes to their blogs and leaves them a comment, letting them know they’ve been tagged and asking them to read your blog.

1) What was I doing 10 yrs ago?

I was finishing off my LLB, looking to find a vacation job at a law firm and articles for 1999. I was also engaged (the first time around) and being told to set a date for the wedding or else (probably should have gone with Door number 2).

2) What are 5 things on my to-do list for today (not in any particular order)

Just 5? You’re kidding!

3) Snacks I enjoy

Salted cashew nuts,
Kit-Kat (the big ones),
Woolies chips,
Woolies berry cheese cake,
Ster Kinekor popcorn

4) Things I would do if I were a billionaire

Upgrade our home (either build on or move),
set our baby up for life with a humungous trust fund,
set the rest of my family up with a smaller trust fund,
outfit our home with all the toys (mostly Mac goodness),
invest more money into my business and get great people to do the work,
spend more time working for iCommons and similar projects that excite me,
take my family all over the country and the world so we can experience it all together

5) Five of my bad habits

Somewhat disorganised (hopefully about to end),
Short attention span unless something really grabs me,
Impatient,
Low tolerance for idiots,
Too self-absorbed at times.

6) 5 places I have lived

Sandton,
Lyndhurst,
Killarney,
Waverly,
Highlands North

… yes, they are all in Joburg but Joburg is a big place …

7) 5 jobs I have had

Insurance tele-sales (short lived thank goodness),
Sales assistant at a CNA,
Supervisor and lousy manager at the same CNA,
Lawyer at a large and small firm,
Lawyer for iCommons (among other things)

5 peeps I want to know more about

Rich Mulholland
Jonathan Cherry
Erik Hersman
Max Kaizen
Melissa Attree
Candice Holgate (I want more than 5, ok?!)

Technorati Tags:
meme, 5 things, chain mail

I’ve been feeling a little off the last couple months when it comes to my blogs and I think I have worked out why. Lately I have come to realise that there are a number of fresh and enthusiastic younger bloggers likeSaul and Bev and I am feeling my relative age. I am sure there was once a time when I was a young, up and coming blogger … all those years ago.

Maybe there comes a time when bloggers age and should make way for the younger, fresher themes and ideas. In fact, that is probably the way it should be. Then us older farts (or maybe the less relevant older farts) can either spend their days reading feeds, reminiscing the days when we posted some really good shit or we shift gears a bit and blog a little differently (kinda like those after shave ads with the more “mature” older fart who has the big boat and obvious wealth).

Shuffle … shuffle …

(these younger bloggers are pretty hot, if I don’t say so myself)

Technorati Tags:
hot new bloggers, saul, bev, outlet, feistyfemale, older farts

So, yes, it is possible to buy music, videos, games and other great content from the USA iTunes Store here in South Africa but it involves buying iTunes vouchers from eBay and other sources and giving the iTunes Store false information.  Once you get past that, you will have an iTunes Store account and can enjoy what our friends in the USA have been taking for granted for the last few years.  On the positive side, this is a way to still buy legal copies of all that wonderful stuff available in the iTunes Store but on the negative side it is a clear violation of Apple’s terms of service and its terms of sale.  The terms of sale start with this unambiguous statement:

U.S. SALES ONLY

Purchases from the iTunes Store are available only in the United States and are not available in any other location. You agree not to use or attempt to use the service from outside of the available territory. Apple may use technologies to verify such compliance.

The terms of service have this bit too:

14. Termination.

a. Termination by Apple. If you fail, or Apple suspects that you have failed, to comply with any of the provisions of this Agreement, including but not limited to failure to make payment of fees due, failure to provide Apple with a valid credit card or with accurate and complete Registration Data, failure to safeguard your Account information, violation of the Usage Rules or any license to the software, or infringement or other violation of third parties’ rights, Apple, at its sole discretion, without notice to you may: (i) terminate this Agreement and/or your Account, and you will remain liable for all amounts due under your Account up to and including the date of termination; and/or (ii) terminate the license to the software; and/or (iii) preclude access to the Service (or any part thereof).

These are just two provisions that deal with a key component of the voucher workaround, namely the address in the USA you have to give the iTunes Store to create your account.  The vouchers enable you to circumvent the requirement for a valid American credit card which is more of a problem for most of us who have enough difficulty with a South African credit card.  There may also be legislation which imposes liability for gaining access to the iTunes Store this way and with that, massive penalties.

I did a post about this a week ago or so (which I subsequently took down in a rare act of self-censorship) and at the time my thinking was that this was at least a way to buy legal copies of music from the iTunes Store, albeit in contravention of Apple’s terms.  It gives people here what they want and is better than buying pirated copies of music from seemingly legitimate download sites based in Eastern European countries!  The problem is that it is still, at the very least, a violation of Apple’s terms and could result in Apple shutting down those accounts and rendering all the music and other goodies you buy useless by revoking the license to use that stuff (I am pretty sure Apple can do this).  At the very least it means all that money you were spending is wasted.

There is another cost depending on what you are buying and this could well be the reason why we don’t have an iTunes Store here in South Africa.  If you buy a movie from the iTunes Store you can expect to spend from around $10 to $15 (roughly R68 to R103 at today’s exchange rate).  Each movie is at least 1.2GB to 2GB and unless you are downloading using an uncapped service or someone else’s bandwidth (naughty naughty) you have to cater for the additional bandwidth needed.  I use Axxess for my ADSL service (great company and great prices) and I pay about R60 per GB.  If I buy an older movie, say "Usual Suspects" for around $10 I will need at least an extra GB of bandwidth for the download or I will hit my cap before the end of the month.  That brings the cost of that movie to about R130.  Look and Listen is selling the DVD for R79.95. 

The download is convenient and there is the cool factor because I could buy it from the iTunes Store.  On the other hand the movie’s resolution is 640 by 480 which isn’t bad but it is less than DVD quality.  I also have the limitations on how and where I can watch the movie unless I am using an Apple TV or something like that (I am not sure of you can burn these movies to a disc).  On the other hand the physical DVD can be played almost anywhere, is cheaper and, if you are so inclined to commit criminal act anyway, there is software freely available that you can use to rip a DVD to your computer at a higher resolution than the download and which you can play on your iPod too if you wanted that.

Another example is the latest Pirates movie which costs $15 and is about 2GB.  That brings the cost of that purchase to over R200 whereas you can buy the normal DVD version for about R140 and the whole trilogy for R300.  When you look at the costs involved, I am not sure the iTunes Store is worth it given the cost of our bandwidth at the moment.  On the other hand where it is great is when it comes to buying music from the store.  Singles cost around $1 (R7 or so) and full albums start at around $10.  The audio quality isn’t bad (128 kbps) and the download isn’t too big either although you can only play the song in iTunes using an authorised version of iTunes (the music still has DRM).  A CD you buy could (theoretically) be ripped at a higher bit rate (better quality audio for those who care) and you could rip the music into whichever music software you want and into a variety of formats to suit your needs.  Even with music, you need to weigh up the costs and your needs.

I thought I’d explore some of these issues and put the workaround into a cost perspective.  I would love to see a South African iTunes Store and I would definitely use it, a lot, but until we have cheaper Internet access, it remains a costly option.  In the meantime if you are looking for a couple legal music download sites, I have a couple links here for you.

Tags: itunes, itunes store, cost, bandwidth, downloads, legalities, terms of service, terms of sale, apple, dvd, cd, analogue hole