Lawyerist.com has published a list of “Best Law Firm Websites of 2012”, and Harrison Pensa’s new site is one of the 11 listed.  Of the 11, only 2 are in Canada.   There is a voting process to pick the best site that ends on May 31 – so please vote for us!

Our new site was built by rTraction, which also created the award-winning reforestlondon.ca million tree challenge website, and recently ran the Canada’s Worst Charity Website contest.  rTraction and I are also collaborators on the Policytool.net online document generation site, which is soon to be re-launched with a new look and new features.

http://harrisonpensa.com/lawyers/david-canton

Today’s Slaw post

Big data is a hot trending tech issue. Wikipedia defines big data as “a term applied to data sets whose size is beyond the ability of commonly used software tools to capture, manage, and process the data within a tolerable elapsed time. Big data sizes are a constantly moving target currently ranging from a few dozen terabytes to many petabytes of data in a single data set.”

The initial issue with big data is the ability to actually work with massive data sets – how to store, search, and manipulate it. But the tools to do that are becoming more sophisticated, and attention is turning to how to take advantage of big data. This McKinsey report entitled Big data: The next frontier for innovation, competition, and productivity is a good summary of the possibilities. There is potential for increased profit margins for retailers, reduced costs for healthcare, product improvements and more.

This all sounds good. Consider for a moment though that big data means massive databases that include huge amounts of customer information. And the information that governments have on us is massive as well. It will be tempting to amass as much data (including personal information) as possible, as the more data is there, the more information that can be learned from it. That flies in the face of privacy principles that say one should only collect the smallest amount of personal information you need for the immediate purpose, and should not keep it for longer than you need it for that purpose.

It is possible to anonymize personal information to avoid the issue, but that is done on a sliding scale – a little anonymization makes it easy to recombine it with other information and figure out who the individuals are – a lot of anonymization makes the data less valuable.

Big data uses that determine generic things like trends and product features are one thing – but it can also be used for targeting individuals for things like advertising and medical treatment. Individuals may welcome or be horrified by that, depending on the use and personal viewpoints.

Another concern is the creeping (and creepy) trend towards industry and government big brother type uses.

It has been pointed out that big data needs to be complemented by “big judgment” . As this Harvard Business Review article entitled Good Data Won’t Guarantee Good Decisions points out, “At this very moment, there’s an odds-on chance that someone in your organization is making a poor decision on the basis of information that was enormously expensive to collect.” That sentiment may very well apply to poor decisions on the privacy aspects of big data as well.

For the London Free Press – May 14, 2012 – Read this on Canoe

A movie studio’s roaring success opened the door for sounds to be trademarked

When one thinks of trademarks, the usual things that come to mind are word marks (the name of a company or product such as “Harrison Pensa” or “President’s Choice”) or design marks (the logo for a company or product such as the Ford blue oval or the McDonald’s arches).

Trademarks can also be registered for colour applied to an object (such as the Nerds On Site red cars, or the UPS brown delivery vehicles). And now we can register sounds as trademarks.

The Canadian Intellectual Property Office (CIPO) recently announced that it will accept applications for sound marks.

Sounds have been registrable as trademarks in the United States and other countries for some time. CIPO’s new position on accepting sound marks results from a long battle by Metro Goldwyn Mayer to register its roaring lion sound.

CIPO’s resistance to registering sound marks apparently arose because the wording of the trademarks act requires marks other than word marks to be filed as a drawing. Sound marks simply didn’t fit into the act’s registration requirements.

Many large brands have distinct sounds that form an important part of their television, radio and Internet advertising campaigns. It is logical that they should be able to file for a trademark for those, as they are no less of a brand than its word mark, logo or colour.

Indeed, sounds that don’t rely on language can become a powerful universal international brand.

We all recognize, for example, the MGM roar at the beginning of a movie, the NBC chimes on television shows and the Intel sound on computer ads.

An applicant for a sound mark registration will have to follow strict rules on the form of the application. It will also have to comply with requirements that apply to trademark registrations generally, such as not being descriptive, and not confusing with existing marks.

Applicants will need to file a recording of the sound, along with a description of the sound and a drawing representing the sound.

Now that these types of applications will be accepted, it will be interesting to see which companies rush to register their sounds in Canada, and how CIPO will approach its decisions regarding which sounds they will accept and which they will not.

http://harrisonpensa.com/lawyers/david-canton 

Today’s Slaw post:

It is becoming more common for businesses (and law firms) to have a corporate presence on social media platforms such as facebook, LinkedIn, and Google plus. Some take advantage of promotional uses such as contests on facebook.

It is important to look at the terms of use if you do that. facebook, for example, has terms that govern how contests can be run on facebook. I suspect many facebook contests run afoul of these terms, and get away with it only because facebook didn’t happen to catch it. I also suspect that many people running the contests are not aware that the rules exist, or if they do know, see others violating, so think they can get away with it too.

Violating the rules is dangerous, as there is a risk that the social media site might simply terminate the page, or even suspend the account. That would certainly be embarrassing and damage one’s reputation, and could, depending on the circumstances, attract the wrath of users or followers.

http://harrisonpensa.com/lawyers/david-canton

My latest Slaw post:

We are heading to a legal services world where increasingly more legal advice and legal services will be provided online. It is not a matter of if, but when. And people have access to massive amounts of information and advice online – some good, some not so good. For many online businesses geography and thus jurisdiction is unimportant and revenue can come from almost anywhere in the world.

Combine that, and it is easy for a business to take the attitude that it can figure it all out itself – without the help of lawyers or accountants. Or at the very least that it won’t call in the lawyers or accountants until something goes wrong. This mindset runs counter to the theory that Susskind and others have about business wanting lawyers to be proactive and be a “fence at the top of a hill rather than an ambulance at the bottom.”

The self-help attitude can however cause a lot of problems, especially when one doesn’t know what they don’t know, or doesn’t know the right questions to ask.

For example, a Canadian business doing business internationally might think it needs to incorporate a company in the US or some other jurisdiction. In some situations, that can be a good thing to do. But before a business does that, it is crucial to get legal and accounting advice. Without it, it could be creating huge tax and compliance burdens, costing in the end far more money than it would have cost to get the advice to do it right in the first place.

One of the difficult challenges that clients and lawyers alike increasingly have to face is knowing when the self help solution is “good enough”, and when it is a recipe for disaster.

http://harrisonpensa.com/lawyers/david-canton

Colleagues at Harrison Pensa have  joined forces with the personal injury firm Legate and Associates to represent Canadian plaintiffs who have developed Inflammatory Bowel Disease or Stevens-Johnson Syndrome as a result of taking Accutane.  (Technically it is a mass tort, not a class action.)

From the Harrison Pensa News feed:

Recent reports from Health Canada, the U.S. Food & Drug Administration, and well-documented medical research from highly respected medical journals have all drawn attention to the potentially dangerous side effects associated with using Accutane. In 2009, Accutane’s manufacturer, Hoffmann-La Roche, indicated on its website that it had decided to discontinue the manufacture and distribution of Accutane in the United States due to rapidly declining product sales and an increasing number of personal injury claims being made.

We are now accepting individual Canadian clients who have been diagnosed with Inflammatory Bowel Disease or Stevens-Johnson Syndrome as a result of their experience with Accutane or its generic equivalents.

If you believe you have been injured due to your experience with Accutane, you are welcome to contact us at 1-888-557-0447 or info@accutanelawsuit.ca. For more information, please visit http://www.accutanelawsuit.ca/.

http://harrisonpensa.com/lawyers/david-canton  

For the London Free Press – April 30, 2012 – Read this on Canoe

BYOD, or bring your own device, is a hot topic. It refers to the trend for employees wanting to use their own smartphones or tablets for work purposes, rather than the ones their employer provides.

Why would an employee want to use his or her own device? It might be a better or more familiar device than their employer provides. Or they might not want to carry two phones. Or their employer might not provide phones or tablets at all.

BYOD can cause headaches for IT departments. It’s much harder to deal with many different types and configurations of devices in the workplace than one specific device or configuration approved by and owned by the employer.

This is a trend that can’t be stopped, and can have advantages to the employer. BYOD raises legal issues that need to be considered as well.

For example, employers usually have technology use policies that allow them to look at whatever an employee does on his work computer or device, even if the employee uses it for some personal use.

The goal is to be able to monitor and deal with improper employee behaviour, such as wasting excessive amounts of time surfing the net, or violating privacy, confidentiality, laws or corporate policies.

But those policies usually justify monitoring based on the notion that the equipment is owned by the employer. Those policies should be expanded to try to include BYOD devices.

It’s unclear to some extent how effective that will be if the issue gets into court, as there are issues of personal privacy connected with employer monitoring of a personal device. But there should at least be an attempt to address the situation and provide a plausible argument for monitoring in certain situations.

Another issue is how to ensure the privacy and security of employer data on a BYOD device. Businesses must keep personal information secure, and need to keep other information secure for various confidentiality and business reasons.

That is easier to do on a smartphone, for example, that the IT department has configured and locked down to require password access, or to encrypt sensitive information, or to allow it to remote lock or wipe the device if it’s lost or stolen.

That becomes more of a challenge when dealing with BYOD. Technology use and security policies should be looked at in light of this. Should, for example, users be only allowed to use a BYOD device if it has a screen lock?

Another approach is to set up systems so that as much as possible remains in the cloud or company-controlled servers, with proper access security. That way, if a device is lost or stolen, the data is not on the device itself.

Access must be simple and easy, though. Otherwise employees will just ignore corporate policy, and will resort to faster and easier ways to get what they want on the device, such as dragging files into Dropbox, or e-mailing them to a personal email account.

http://harrisonpensa.com/lawyers/david-canton

Today’s Slaw post:

A hackathon (hack + marathon) is an event where computer programers, often in conjunction with graphic designers or other related disciplines, get together for marathon sessions to collaborate intensly on a project. There is a specific goal in mind, such as coding specific software or solving a specific problem.

Brooklyn Law School’s Incubator and Policy Clinic recently held its first legal hackathon, a day long event for law students, lawyers and entrepreneurs to help lawyers think more like hackers. One of the organizers said “What I’m hoping to get at today is to figure out how we as lawyers stop being roadblocks and how we participate in a world moving rapidly around us.”

More detail about the session can be found here, here, and here.

So is this the start of a new trend, or is it simply an amusing academic exercise?

My latest Slaw post:

I sometimes help clients wrestle back domain names and corporate social media accounts from disgruntled ex-employees or other unfriendly parties. All businesses and organizations should keep in mind that these are valuable assets. It is important that they are registered in the business name, and not that of an employee or service provider.

And if use or control of those accounts resides in an employee who is about to become an ex-employee for whatever reason, make sure that control is passed back at the time the employee leaves.

Otherwise, the disgruntled person with control of those can lock you out, prevent your use, take down your web site, cripple your email, publish embarassing things, and make you spend time and money to recover control.

For the London Free Press – April 16, 2012 – Read this on Canoe

INFORMATION CAN BE USED IN NUMEROUS UNDESIRABLE WAYS

Social media and smartphone apps have made it easier than ever to communicate personal information to friends and family. News, photos and your location can be shared within seconds. But this also means this information is accessible to strangers like never before.

This can occur in more ways than a simple Google search or scan of a Facebook profile. The (now disabled) app Girls Around Me recently stirred up considerable controversy. The app used GPS data to find a user’s location, then displayed information about people who had been in the area and checked in on foursquare, such as their interests, friends, and photos. This happened without the knowledge of those people.

As outrageous as this seems, the personal information disclosed through the app is all information the individuals themselves have posted on Facebook and foursquare and designated as public. If it’s OK to access it through Facebook or foursquare, why are we so upset about accessing it through an app like Girls Around Me?

Context is the distinguishing factor. On Facebook or foursquare, most strangers who view information are somehow connected through six degrees of separation. The information is there, but not easily or readily accessible on a single-purpose consolidated basis.

On the other hand, Girls Around Me marketed itself as a tool for men “looking for love or just after a one-night stand,” a sort of dating site lacking the consent or even the knowledge of the participants.

Although the information was made publicly available by the individuals in question, they never intended for it to be gathered and used in such a way. There is an element of surprise and shock at this use of public information. The fact this is even possible makes people feel vulnerable — and while this may be legal, it seems very wrong. Social norms dictate if you are having a conversation in public, those who can hear but aren’t involved will not join in, but will pretend they cannot hear you. By taking public, yet personal, information and broadcasting it through an app, Girls Around Me flies in the face of the idea of “practical obscurity.”

foursquare has denied the app access to its data, making Girls Around Me effectively useless and Apple has also pulled it from the App Store. However, the privacy concerns remain. It is likely other apps and services will access similar information in the future and use it in unforeseen ways. The lesson here is that in the digital age, public information is extremely accessible and can be used in many unforeseen and undesirable ways.

If you are making an app that uses publicly available personal information, you can’t just think you can use that information as you please. Consent to use personal information is contextual — the legal concept is informed consent. And never underestimate the creepiness factor and the wrath of surprised or outraged individuals.

That can shut down a service faster than any privacy commissioner.