Comparisons in the Cloud

The lovely people over at WorkShare pointed me in the direction of their WorkShare Online last year.

The premise is pretty simple. Most lawyers will have used the Deltaview document comparison system or at least seen what it produces.

With WorkShare Online you can do the same thing in the cloud. Just upload your original MS Word document and the revised version and hit the "Compare" button. Click on the thumbnails below for the full screen shots.

The two documents are compared for changes and you can download the resulting comparison in PDF format. The screenshot below is a quick test I ran for this post, but it works just as you would expect on more complex documents.

So far this probably falls into the category of clever and useful, but not earth shattering. However, I understand from WorkShare that at some stage this will be available on the iPad (at the moment Mobile Safari doesn't let you upload documents so I guess a native app would be needed?).

Given that MS Word tracked changes are a bit of a problem on the iPad, shifting the document comparison legwork into the cloud seems like it could be a good solution.

If you fancy trying it out you can sign up for the beta here.

Mac App Store refunds

The Mac App Store is a great way of buying software.

Purchasing and downloading apps through a single account (and having them available to re-download to other computers) makes life a lot simpler. I also like the trend towards reducing the price of apps when adding them to the App Store.

What happens though if you need to get a refund for an App which is unsuitable or doesn't work (or you just change your mind)?

I recently bought and downloaded Aperture through the Mac App Store and found that it didn't play nicely with my MacBook Pro.

I tried every tip I could find online, but nothing stopped it from slowing the entire system down to a snail's pace.

In the end I switched back to iPhoto (which actually does what I need in terms of RAW processing) and decided to see if I could get a refund for Aperture.

I tracked down this form, which is the one you need to complete to report a problem with an app from the Mac App Store.

Whilst doing this I wondered whether the 7-day cancellation period under the Consumer Protection (Distance Selling) Regulations 2000 would apply to Mac App Store purchases.

If I had ordered a copy of Aperture on CD-ROM then it definitely wouldn't. Regulation 13(1) of the DSR excludes the cancellation period:-

(d)for the supply of audio or video recordings or computer software if they are unsealed by the consumer;

The policy reasons behind this are obvious; it would make it too easy for consumers to copy the media and then return it.

Software downloads aren't covered by this exclusion, but they are dealt with in the OFT guidance on Distance Selling. This states that software downloads should be considered as services because "...the consumer does not receive physical goods".

Under regulation 13(1)(a) of the DSR the 7-day period can be excluded for services if:

...performance of the contract has begun with the consumer's agreement before the end of the cancellation period...

This means that providers of downloads can state in their terms and conditions that the right to cancel ends once the download starts. In fact Apple take exactly this approach; the Mac App Store terms and conditions say:-

The Stores’ services commence immediately when you begin to download a product from the relevant Store and you will not have a right to cancel your contract once the services commence unless you have received an unacceptably poor download...

I can't really argue with Apple's approach as it seems to be consistent with the DSR as interprated by the OFT.

When you look at this in more depth though, it looks a bit crazy. Nothing in the DSR or the EU Directive to which they give effect actually says that downloaded software is a service and not a product.

This is just the position taken by the OFT in their guidance, and I'm not sure it stacks up.

It's not unreasonable to say that cancellation rights can't be exercised where downloaded software can be copied or the seller can't verify that it has been deleted.

It's exactly the same reasoning as for music and software CDs which have been unsealed.

Where it falls down is the attempt to justify this for software downloads because the customer "does not receive physical goods".

If you exercise the cancellation right in respect of a sealed CD copy of Aperture then you are entitled to a refund of the whole price... not just the cost of the physical CD-ROM and packaging. The software is clearly treated as goods and not a service.

There is no logical difference between the copy of Aperture which is stored on the CD-ROM and the copy which ends up stored on my hard drive after a Mac App Store download. If the CD-ROM version is a product, then so is the downloaded one.

So can it really be correct to say that by paying my £50 to Apple I am simply paying for the service of providing the download of Aperture?

The Mac App Store is like a petrol pump. When I pay to fill my car up I'm not paying £70 to use the petrol pump... it is simply a mechanism to deliver a product which I am paying for.

I don't ever "own" the copy of Aperture as such as it is a copyright work which is licensed to me to use, but the same is true of a record or a book, each of which are treated as goods under the DSR.

There are cases where providing access to software can be classified as a service. I'm thinking here of cloud SSAS providers like 37 Signals. This is clearly as service and I would expect it to be treated as such under the DSR, but it's not the same as downloading a full copy of a sofware package onto a local machine.

In relation to app store downloads, the definitive factor should be whether the App Store ecosystem lets the seller retain control over copying and use of the app after it is downloaded.

In the case of the Mac App Store, you need to be registered with Apple as having purchased an app in order to download and update it, and this registration can easily be deleted once a refund is given. I don't know if an app can be remotely disabled once it ceases to be registered... and this may be the key point.

If the seller doesn't have this level of control, then it would be unfair to the seller for the cancellation rights to apply (and in my view Regulation 13.1.(c) should apply as the goods "by reason of their nature cannot be returned").

It seems to me that this is actually a better justification for the OFT's position in relation to downloads. They are "goods", but ones that are not capable of being returned.

If the app store system allows the seller to verify that the app can no longer be used then the OFT's guidance unfairly penalises the buyer. The seller wouldn't suffer any loss as a result of the contract being cancelled.

This all comes down to the definition of "capable of being returned". In the Post-PC era, I would argue that this should be defined in a wider sense:- that the seller can be restored to substantially the same economic position as if the software had not been downloaded.

Luckily I'm not going to have to challenge the OFT's guidance I had a pleasant response from Apple agreeing to process the refund (incidentally they don't require you to delete the app, you just can't upgrade or reinstall it).

This doesn't change the fact that the treatment of software downloads under the DSR no longer seems fit for purpose in the App Store world. Maybe it is time this was looked at again?

iBooks Author for legal

It's not as exciting as a new iPad launch, but Apple today announced the launch of iBooks 2 (billed as "a new textbook experience for the iPad").

Alongside this comes the new iBooks Author, which is a free Mac app for writing these new content-rich iBooks.

My experience of law textbooks in iBooks has not been great, so would iBooks Author lend itself to the legal market?

I wonder which of the LPC providers will be first to jump on the bandwagon?

SOPA blackout

If you are wondering why Wikipedia has gone black today, there is an excellent summary of the SOPA bill and its effects on Mashable.

I originally thought that this was more of a US issue, but the extra-territorial aspects of SOPA are truly scary.

Not everyone agrees with the Wikipedia blackout, but I think it is a really effective reminder of how much we take the free internet for granted.

Can solicitors be social?

I wrote briefly last year about the Practice Note on social media issued by the Law Society at the end of December.

I'm sure there will be some commentators who bemoan the fact that the Law Society "just don't get social media..." and that any kind of rules ignore the fact that we are living in a world of personal branding and thought leadership where the Twlawyer is king.

This isn't that kind of post.

The truth is that this is a difficult area for a professional body to get to grips with within the context of a complex regulatory environment.

A note like this has to address the entire profession from self appointed social media gurus to those who have no knowledge and even less interest.

So how well (in my view) have the Law Society managed it?

What's the point?

There are a few parts of the practice note which I disagree with. Top of the list is the statement:-

"There are no quantifiable benefits of engaging in social media activities…"

It is essential that law firms are able to measure the return on investment from social media activities.

There may be no quantifiable benefits in the way most law firms are actually using social media, but that's a different proposition.

Elsewhere in the note it seems that social media:-

"present real opportunities if harnessed effectively."

I don't think it is the Law Society's responsibility to advise firms on social media strategy, but these two seemingly contradictory positions may be off-putting for solicitors wondering whether to bother with social media.

A note about terminology

To start with some pedantic nit picking.

This is open to argument, but I personally don't like the use of the phrase "Social media are...".

I know that social media should be a plural noun, but the usage which has evolved is as a singular. Is Facebook a “social medium”?

I also struggle with the description of Twitter and other services as "sites".

You can tweet quite effectively via mobile devices (or even SMS) without ever visiting the Twitter website and it is more accurate to describe them as "services".

Neither of these are big points, but I do think the terminology used has an influence on the credence you can expect from the "power user" end of the readership spectrum.

It's the ethics, stupid

Putting terminology to one side, the main thrust of the note is about the ethical obligations of solicitors using social media.

This is common sense really, but it bears repeating. The same obligations apply when using social media as in any other field.

Solicitors are obliged to adhere to the Principles in the SRA Handbook when using social media. No surprise there.

However, the specific examples throw up some interesting (worrying?) issues

Can simply being connected to a client on LinkedIn breach confidentiality by acknowledging you have a link with that client?

I guess there are circumstances where this could apply, but in the situation described in the note where the client sent the invitation to connect this seems extremely harsh!

Back in 2010 I wrote about Locational Libel and a similar theme arises in the note.

Could sending a geotagged tweet from a certain location disclose that you are working with a client and give rise to a breach of confidentiality?

This scenario seems more risky than the LinkedIn one as this disclosure is likely to be made without the client's consent. Best to watch those location settings and avoid FourSquare check-ins at client meetings.

It's nothing personal...

The note refers in a number of places to the “blurring of boundaries” between personal and professional roles which can happen when using social media.

This begs two very interesting questions, which I think the note skates around.

1. To what extent do the rules cover "personal" social media use?

2. Who actually owns these social media contacts? Which are personal and which are purely business related?

On the first point, you could take Handbook Principle 6 as an example. This states that as a solicitor:-

"you must behave in a way that maintains the trust the public places in you and in the provision of legal services"

If the boundaries between professional and personal aren't clear, how does this apply to a purely personal Twitter account or blog (as an example)?

Does it make a difference whether your profile states that you are a solicitor, or even uses your real name so that this fact can be discovered?

The note suggests that it may be enough that your professional persona could be:-

"...associated with activities which may be visible online..."

I'm not sure what this means, but one interpretation is that anything posted using your real name and which is publicly accessible "may be used in evidence against you".

I have written about this in the past (see What not to Tweet) and my views haven't really changed after reading the note.

The best advice remains:- don't write anything online which you wouldn't be happy to see prominently attached to your professional record.

I am also interested in how this applies to anonymous bloggers (there are a few of these in the legal field). Do the same rules apply even if your identity is hidden and you don't refer to the fact that you are a solicitor?

The advice later in the note to:-

"regularly review the content of your personal social media channels [and] remove any information you... do not feel comfortable with"

seems a little shaky in this context. Far better not to post to begin with as there is absolutely no guarantee of putting the genie back in the bottle.

The second area where personal -v- professional is relevant is in relation to ownership of social media contacts.

In the light of the recent PhoneDog case in the USA it is interesting to see the Law Society advising solicitors setting up "personal" LinkedIn accounts to:-

"use a personal email address as this would not be affected if you changed employers."

This ignores a couple of key points, which are also relevant to the statement elsewhere in the note that "contacts on your own personal page on a social media site belong to you".

The basic technical point:- you can change your primary email address for LinkedIn at any time so this seems like a bit of a red herring.

Less obviously, most senior lawyers will be subject to restrictive covenants in their service contract or partnership agreement on leaving a firm or employer.

I'm not really sure what is meant by a "personal" LinkedIn account in this context (possibly it depends upon whether you set it up on your own initiative or at the request of the firm?).

In any event, as LinkedIn is a business networking service your contacts are bound to include clients or referrers of your firm.

My view is that actively contacting these clients and referrers using LinkedIn could constitute a breach of covenant. The email address used to sign up isn't really relevant.

I don't think this has been addressed by a Court yet, but these contacts receive an automated message on LinkedIn when you change jobs. Could even this be sufficient to constitute "solicitation"?

There are no easy answers, but the distinction between personal and professional really needs to be explored in more detail and I feel that the note sidesteps this issue.

Privacy and data

The note also touches on privacy settings and the "right to be forgotten" issue, which is certainly worth highlighting to anyone thinking of getting involved in social media.

How easy is it to actually delete your accounts at a later date? The note actually includes a link to the Facebook account deletion page, which is a nice touch.

What else?

The rest of the note covers more conventional ground with advice on social media policies and summaries of what the various services involve.

The advice on policies generally seems sensible, although I'm not sure about the support for including the commonly seen "views expressed are those of the individual and not the firm" disclaimer.

I would really prefer to see an analysis of what this actually achieves other than possibly creating a false sense of security.

Marks out of ten?

I'm not really about to start ranking Law Society guidance out of ten, but on the whole I thought the note was a useful guide to social media best practice.

If you want help with strategy then you will need to look elsewhere, but this isn't really the remit of this kind of guidance.

The elephant in the room though is the distinction between personal and professional use.

I'm not sure this is something which can easily be defined, but I expect to see these two related issues become more and more of an issue over the next few years:-

1. Do you have any legitimate expectation of a "private persona" online or is everything you write subject to the professional conduct rules?

2. What factors decide who owns the Twitter followers and LinkedIn contacts that a solicitor gains whilst working for a firm?

Until these points are settled there are going to be some huge grey areas for both firms and solicitors who use social media.