1. Legal perspectives on system development Liability, Litigation risk, ‘Professional' standards, and Ethics http://cyberlawcentre.org/2006/talks/cse.htm 2006 David Vaile Executive Director Cyberspace Law and Policy Centre Faculty of Law, University of NSW http://www.cyberlawcentre.org/

2. Outline  Strange bedfellows  Legal system  Liability  Software development – immature?  Examples: Consumer protectionConsumer protection Product liabilityProduct liability Professional liabilityProfessional liability Anti-trustAnti-trust CopyrightCopyright Software patentsSoftware patents PrivacyPrivacy SpamSpam

3. My background  Tech support manager: JAM Software OS, expert system, utils - UCDOS, expert system, utils - UCD  Privacy Commissioner’s Office: policy Big government projectsBig government projects  Public interest law: PIAC, RLC, Legal Aid Test cases, Consumer, CrimeTest cases, Consumer, Crime  Virtual community SysAdmin: MSP  Web exec. producer: Access Online  Australian Privacy Foundation

4. Software, Law and Ethics  Strange bedfellows  How the law is made, and works  Differing Principles and standards  Risks in software development  Examples: Consumer protectionConsumer protection Product liabilityProduct liability Professional liabilityProfessional liability Anti-trust: abuse of monopolyAnti-trust: abuse of monopoly Intellectual property: copyright, patentsIntellectual property: copyright, patents PrivacyPrivacy SpamSpam

5. Features of the legal system  Main divide: Criminal the rest  Criminal Launched by state, trial, conviction or acquittalLaunched by state, trial, conviction or acquittal  Civil Sued by other party, damages, restitutionSued by other party, damages, restitution  Sources Statutes ('Laws") set rules, Cases interpret themStatutes ('Laws") set rules, Cases interpret them Jurisidiction: which laws and courtsJurisidiction: which laws and courts Appeals to higher courtAppeals to higher court Precedent is critical in casesPrecedent is critical in cases  Obligations: from Statutes and Contracts  Everything is arguable (if you lose, $$ costs)

6. What shapes the law?  Ongoing struggle between interests  Commercial reality  Technical reality  Public standards  International affects (indirect)

7. Different standards  Liability Is it against the law?Is it against the law?  Litigation risk Will you be caught, sued or prosecuted?Will you be caught, sued or prosecuted?  ‘Professional' standards Will your peers reject you?Will your peers reject you?  Ethics Will your children & friends reject you?Will your children & friends reject you?

8. Development risk factors  20% coding and engineering – ignore?  80% analysis, communication, revision  User-Centred Design & Risk Management  Neglected but critical  Early vs. late error discovery  ‘User sovereignty’

9. Hypothetical  Most software projects fail $, time, scope, quality (for User)$, time, scope, quality (for User)  Many break various standards, but...  You could do it accidentally...  Or be asked/tempted to deliberately  Your own position  Your employers  The ‘victim’s position’

10. What matters?  Breaking the law? Liability  Getting caught? Enforcemt  Losing your job? Professional  Losing your reputation?Ethics  Or just building crap?Self respect

11. Consumer Protection  Based on consumer/vendor relation  Assumes imbalance  Statutory Warranties – fit purpose  Contractual waiver?  Misleading and deceptive conduct  Unfair Contracts  Can be Strict Liability – State Bank

12. Tort/ Negligence  Product liability  Duty of Care, special relationship  Act or omission  Causation  Forseeability of harm  Proximity

13. Consumer protection hypothetical See hypothetical exampleexample

14. Professional Liability  Nature of Profession?  Membership of Professional body  Registration required to work?  Self-regulation  Insurance  Peer attitudes  Reputation

15. Anti-trust: Abuse of Monopoly  Competition policy  Monopoly  Example: MS v DoJ re Netscape  Political involvement  Practical significance

16. Anti-trust hypothetical See hypothetical exampleexample

17. Intellectual Property  Purpose:  Copyright Act: form, not substance No registrationNo registration Digital AgendaDigital Agenda  Patents Act: the idea, not the form  Circuit Designs  Free Trade Agreement

18. Copyright  Copyright Act: Exclusive right to control exploitationExclusive right to control exploitation  No registration  Actual text, code or implementation  Licences with conditions and fees  Technological Protection ‘Digital Rights Management’ tools‘Digital Rights Management’ tools DMCA and contracting away user rightsDMCA and contracting away user rights

19. Copyright and Public Domain  Differences in Australia, US...  Fierce battle: maximalist v PD?  ‘Public Domain’  Open Source software: GPL, copyleft  Open Content Creative Commons – US, global?Creative Commons – US, global? Free for Education - AustralianFree for Education - Australian  Business models

20. Patents and software Patents and software  Right to deny access  Requires registration  Expensive to fight  Patentable material?  E-business patents Amazon 1-Click web shopping cartAmazon 1-Click web shopping cart  Gene sequence patents Bioinformatics – human genome raceBioinformatics – human genome race

21. Current patent battles  Resistance to patentability of software  EU Commission recommends, Parl. Rejects  CSIRO v. US computer industry – wireless  Linux?  Why are software patents a danger? Locking up pure ideas? Mathematics? StallmanLocking up pure ideas? Mathematics? Stallman Not just open sourceNot just open source Impossible to ascertain if infringingImpossible to ascertain if infringing Patent Offices too lax and inexperienced? $$ motivePatent Offices too lax and inexperienced? $$ motive Very expensiveVery expensive Only works if you have a huge portfolioOnly works if you have a huge portfolio

22. Privacy  Right to be left alone  Defeat of Australia Card, Privacy Act  Limited Rights of data subjects  Restricts what technology can do  Requires security  Affects everyone

23. Privacy Hypothetical See hypothetical exampleexample

24. Spam  Spam Acts: Australia, USA, California  Unsolicited commercial electronic message  Single message  Address harvesting  Penalties  Surveillance  Workplace privacy bill NSW

25. Spam hypothetical See hypothetical exampleexample

26. Questions?

27. Conclusion David Vaile Executive Director Cyberspace Law and Policy Centre Faculty of Law, University of NSW http://www.cyberlawcentre.org/