Sunday 13 July 2014

Computer Law - Things aint what they used to be

Manchester Mark 1 - one or the world's first computers
Source Wikipedia

Jane Lambert

When I was first called to the Bar I was a very rare bird indeed: a barrister who knew something about computers. I did not know all that much for I did not read computer science at university but I knew more than most having been one of the first children on the School Mathematics Project which taught binary and hexadecimal arithmetic, set theory and groups, linear programming and Boolean algebra. I set up a mathematical society and participated from time to time in a club that made things including a simple computer in 1965. I was encouraged to take an interest in computing by my father who had seen Manchester Mark 1 when he was a research student at Manchester University. I maintained my interest when I was an undergraduate at St Andrews and a graduate student at UCLA. Indeed I think I must have sent one of the world's first emails when I requested a book from the UC Berkeley library in 1972 or 1973 for I later found out that both UC campuses had participated in the DARPANET which was the forerunner of the Internet. In my first job at the Economist Intelligence Unit I learned about remote sensing when I assisted in one of the early projects in that technology. I was one of the early adopters of micro-computer technology having bought myself a Commodore 64 which nearly sent the TV up in smoke as I was setting it up and later an Amstrad 8256 on which I taught myself to write simple programs. I joined the British Computer Society as an affiliate at about that time and rather fancied that if I ever failed at the Bar I could retrain as a systems analyst or at least a programmer.

In the early days before the Worldwide Web when home computing was in its infancy computer law was simple. It was mainly about computer procurement though there were occasional disputes over copyright and the development of the first computer networks gave rise to concern in a number of countries over privacy. Procurement was a matter for businesses because only big companies, governments and a few other public sector institutions could afford computers. Most disputes like MacKenzie Patten & Co. v. British Olivetti Ltd 19 May 1984 in the UK and Chatlos Systems, Inc. v. National Cash Register Corp., 635 F.2d 1081 (3d Cir. 1980) in the USA arose from a mismatch between customers' unrealistic expectations and salesmen's extravagant claims. Looking back at my old textbooks from the early 1980s such as Colin Tapper's Computer Law, Morgan and Stedman on computer contracts and Michelle Rennie's precedents I recall how we used to divide computer contracts into hardware, software, hardware maintenance, software maintenance, bureau processing and turnkey contracts. We agonized over whether software was a good and whether liability for breach of contract could be excluded from the Unfair Contract Terms Act 1977 under para 1 (c) of Sched 1 on the basis that a software contract was a software licence.

The arrival of the Internet changed all that. The public are better informed about computers and know what computers can and cannot do. A lot of software including applications used by businesses for word processing, spreadsheets, databases, email and presentations are now free at the point of use or cost very little. Save for big ticket public sector procurements which still somehow seem to go wrong computer supply disputes hardly ever arise because much of the processing takes place remotely and most applications - particularly those that are free or open source - are expendable and easily replaced if they fail to meet expectations. The sort of contracts that I am asked to draft or review nowadays tend to relate to e-commerce and the Internet. The big ticket disputes involving the public sector to which I referred earlier tend to be resolved through negotiation, mediation and other methods of alternative dispute resolution. It is several months since I last settled particulars of claim in a computer supply dispute in the Technology and Construction Court.

An area that still seems to lead to disputes is web design. In 2011 and 2012 I wrote a series of articles for web designers and their customers which I posted on J D Supra:
I have had a look through those articles and find they are still relevant though some details need to be updated. For instance, the Patents County Court has been replaced by IPEC (the Intellectual Property Enterprise Court) and IPEC has a small claims track whose procedure I discussed in "How to bring or defend a small Intellectual Property Claim in the Intellectual Property Enterprise Court" 11 May 2014 and "How to take proceedings in the IPEC Small Claims Track"  12 July 2014.

Should anybody want to discuss this article or any of he topics mentioned or referred to call me on 020 7404 5252 during normal business hours. You can also contact me through my contact form or message me through Facebook, G+, Linkedin, twitter or Xing.

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