IN THIS ISSUE
Bulger media ban eased for ISPs - Digital publisher wins first round in ebooks case - Browse wrap software not binding - Bahl tribunal criticised over failure to use web - Industry news in brief - Law firm news in brief - Clifford Chance beef up dealroom services - Lawyers not giving away the family silver - Napster told to stay shut - Axxia launches ASP service for lawyers - Mediation in IT disputes - Microsoft launches MIS add-on for XP - L&H trio get bail - Falcon and Real go separate ways - Microsoft changes licence terms - Click of death case to settle - Online divorce in a handbag - Judge is cool dude says hacker - Technology overload - Can I get a greeting card ? - Next issue - 19.07.2001

BULGER MEDIA BAN EASED FOR ISPS
The reality of living in the internet age seems to have finally dawned on the High Court in London where earlier this week Dame Elizabeth Butler-Sloss, the President of the Family Division, altered the terms of an injunction protecting the anonymity of the Robert Thompson and Jon Venables - the killers of James Bulger - after accepting that the original order was unfair to internet service providers.

The terms of the original order would have automatically exposed ISPs to court sanctions if any information about the two killers' identities had found its way onto their servers, even without an ISP's knowledge. This provision has now been revised - to reflect the fact ISPs have little control over the posting of content onto the web - so that an ISP will now only be in breach of the injunction if it knew the material had been placed on its server or was likely to be accessed via its service and had failed to take all reasonable steps to prevent its publication by removing the material from its server or blocking access to it.

DIGITAL PUBLISHER WINS FIRST ROUND IN E-BOOKS CASE
Digital publisher Rosetta Books seems to have won the first round in its copyright dispute with Random House (Random House Inc -v- Rosetta Books) when New York federal court Judge Sidney Stein denied Random House a preliminary injunction saying that e-books do not fall within the company's exclusive rights to publish written works. Rosetta has argued all along that its separate contracts with the authors meant it could not be prevented from publishing, in digital format, several works by various authors including William Styron and Kurt Vonnegut. The full decision will be published next week..

BROWSE WRAP SOFTWARE NOT BINDING
In a putative class action, Specht -v- Netscape Communications, against Netscape and its parent company America Online - which alleges that the company's SmartDownload software transmits private information about users' file transfer activities to Netscape in violation of federal law, US District Judge Alvin Hellerstein ruled in New York last week that users were not bound by an arbitration agreement contained in an online licence agreement.

Netscape had moved to compel arbitration, arguing that the disputes in the complaint, like all others relating to use of the software, were subject to a binding arbitration clause in a licence agreement entered into by the software users. The clause subjected parties to arbitration in Santa Clara County, California, with the losing party paying all costs. However Judge Hellerstein disagreed. Applying California law,he found that because of the manner in which the licence agreement was presented - users could download the software without viewing the license or even being made aware of its existence, let alone expressly accept its terms - there was no assent

In reaching this decision, the judge distinguished the licence from click-wrap licences commonly used on the internet. Such licences, which courts in Illinois and California have found to be valid, require the user to click "yes," indicating assent to the licence agreement, in order to obtain the software. Instead the court found the Netscape licence to be more like a browse-wrap licence, in which a notice in the form of an icon appears on the web site but the user is not required to click on the icon or view the licence to proceed.

Judge Hellerstein expressed doubt that browse-wrap licences were enforceable and went on to say the case at hand was an even more extreme example. "The only hint that a contract is being formed is one small box of text referring to the licence agreement, text that appears below the screen used for downloading and that a user need not even see before obtaining the product." Furthermore, the language of this text, asking users to "please review (the) licence agreement... read as a mere invitation, not as a condition."

The court also rejected Netscape's argument that the mere act of downloading indicated assent. According to the judge "downloading is hardly an unambiguous indication of assent. The primary purpose of downloading is to obtain a product not to assent to an agreement... Netscape's failure to require users of SmartDownload to indicate assent to its licence as a precondition to downloading and using its software is fatal to its argument that a contract is formed. Mutual assent is the bedrock of any agreement to which the law will give force. The defendant's position, if accepted, would so expand the definition of assent as to render it meaningless."

The case returns to court on July 26 when the parties will appear at a status conference to discuss a motion for class action certification.

KAMLESH BAHL TRIBUNAL CRITICISED OVER FAILURE TO USE THE WEB
The Times newspaper's weekly legal supplement has criticised the the way an employment tribunal delivered its ruling in the Kamlesh Bahl case - this was a byzantine dispute between the English Law Society and one of its former vice presidents and resulted in the tribunal upholding Miss Bahl's complaint that she had been the victim of racial and sexual discrimination. What concerned The Times was that copies of the judgment were only made available to the media thanks to the Law Society press office running off photocopies of the 126 page long judgment. As the newspaper put it "Using the internet seems not to have occurred to anyone. If the Court of Appeal can put its rulings on the web, surely a tribunal in a case of wide public interest can manage it?"

INDUSTRY NEWS IN BRIEF
RECRUITMENT DRIVE UNDERWAY AT LAWTEL - The UK's Lawyer Group has launched a major recruitment drive for additional staff to sell and support its Lawtel online legal information service. Recruitment opportunities include openings for indexers, editorial assistants plus freelance law reporters, copy editors and legal editors.

WHITEHILL SYSTEM GOES INTO WARD HADAWAY - London based Aurra Consulting has closed it's first sale as a reseller of Whitehill Technologies products in the UK. Newcastle law firm Ward Hadaway has purchased the Whitehill Enterprise system, which it will run in conjunction with its CMS Open practice management software. The Whitehill software provides law firms with a way of extending their formatting options when it comes to converting numerical data into bills and similar documents to be presented to clients.

ELITE WINS DEALS IN HONG KING AND ONTARIO - Elite Information Systems has added two new clients: a Canadian state government agency - the Ontario Ministry of the Attorney General - and the Hong Kong based law firm Koo & Partners to its list of users.

STEPTOE & JOHNSON SELECTS PROLAW - Steptoe & Johnson has selected the ProLaw system, with built in Legalex Rules, as its docketing package of choice. ProLaw is being used to docket for over 500 users in three sites: Washington DC, Phoenix and Los Angeles. The firm said it was looking for a rules based calendaring system that was both customisable and would integrate with Microsoft Outlook to generate automatic email reminders of upcoming deadlines

FRESHFIELDS CHOOSES ANTIGEN FOR ITS ANTI-VIRUS TECHNOLOGY - Freshfields Bruckhaus Deringer has purchased a 4000 user license of Antigen 6 for Microsoft Exchange, a high performance, preemptive virus detection and content management system from Sybari Software. A version of Antigen 6 for the Lotus Domino/Notes platform is currently in beta testing and set for release later this summer. Antigen is available as a two year renewable license based on the number of users protected within an organisation, with prices ranging from £17.37 to £6.95 per user. To download a free evaluation copy visit www.sybari.com

LAW FIRM NEWS IN BRIEF
NABARRO NATHANSON RELAUNCHES WEB SITE - Nabarro Nathanson has relaunched its web site. The new site, which reflects the wider rebranding exercise that has being going on throughout the firm, is designed to meet the needs of clients, prospective clients, employees, graduate and the media. Although it contains all the material you would expect on a law firm web site - commentaries on legal developments, news, profiles of partners etc - the aspect that makes it stand out is probably the navigation with drop down menus, the interactive quick menu, plenty of search facilities and useful links to complementary material on all the main content pages. www.nabarro.com

SHAW PITMAN MERGES WITH LA FIRM - With effect from July 1, the international technology law firm Shaw Pittman, which has offices in London, Washington DC, New York and Los Angeles, has merged with Klein & Martin, a Los Angeles-based law firm with technology and healthcare expertise. The firm says the deal strengthens Shaw Pittman's presence on the US west coast by bringing the number of lawyers in its LA office to 23 and the total number of technology lawyers in the firm to more than 225.

CLIFFORD CHANCE BEEF UP DEALROOM SERVICES
Clifford Chance has beefed up its virtual deal room offerings - originally called FruitNet and now badged as CliffordChanceDirect - by the introduction of additional technology, including more powerful servers and mirror sites, to ensure the service will always be secure and accessible on a 24/7 global basis. Before its launch, the firm put the system through extensive field testing including a simulated 'live' situation involving over 60 Clifford Chance personnel in nine offices simultaneously accessing the service.

CliffordChanceConnect consists of two key components: Client Centre: a customised extranet for clients and Clifford Chance to exchange and publish information - such as matters in progress, contacts, financial reports, continuing legal education resources and announcements. And Matter Sites: collaborative web sites for clients to work with Clifford Chance on their deals, cases and other projects on which the Firm advises them. Clients can give third parties access to these sites and specify levels of access rights for each party. The initial roll-out has already led to 45 organisations using CliffordChanceConnect.

LAWYERS NOT GIVING AWAY THE FAMILY SILVER
Denton Wilde Sapte will next week launch a new online legal service for the leasing industry called Leasebank. The pricing model for the service, which will include advice as well as downloadable document templates, will be based around an annual subscription fee - reported to be £10,000 pa - that is refundable to users who subsequently instruct the firm. Given that it is an old complaint, here at New Media Lawyer, that many law firms are currently giving away the family silver through offering far too much free material on their web sites to users who will never convert into fee paying clients, Denton's approach may prove a happy compromise.

NAPSTER TOLD TO STAY SHUT
Federal Judge Marilyn Hall Patel, of the US District Court for the Northern District of California, yesterday (Wednesday) ordered Napster, which has been off-line for the last week, to stay shut down until it can comply with the preliminary injunction she issued in March. Patel said the music-swapping web site is still not complying with her orders to keep copyrighted material off its servers. Napster suspended its service last week to fix bugs in a new system designed to identify music files that infringe on copyrights.

AXXIA LAUNCHES ASP SERVICE FOR LAW FIRMS
Following successful trials with Telford based solicitors Martin Kaye, Axxia Systems is teaming up with the specialist internet services operator The Hub to offer a fully managed ASP (application service provider) service to UK law firms for a fixed monthly cost.

Under the terms of the new service - called Axxia ASP - all hardware, software, communications, implementation, support and training becomes the responsibility of Hub and Axxia. Axxia managing direct Stuart Holden said the aim is to offer users an alternative route to best of breed technology with the emphasis on resilience, security, simplicity and cost effectiveness.

The full service, including Microsoft Office, internet access and Axxia applications, will start at £200 per user per month, with calculations based on existing IT set-up, total number of users and modules required. From current industry figures on total cost of ownership, Axxia reckon the ASP route represents potential savings of up to 50 percent on traditional PC networks.

It is also worth noting that this is not an internet based service. Instead Axxia ASP is a managed network service based on point-to-point communications, delivering applications to users' thin client terminals via leased lines. Axxia is so confident of the reliability and security of the service - which also makes it a suitable platform for firms wanting to deliver online legal services on a 24/7 basis - that the company is offering a guarantee of 99.5 percent per month uptime or your money back for that month. There will be a longer report in the next issue of Legal Technology Insider.

MEDIATION IN IT DISPUTES
In the wake of the recent Anglo -v- Winthur Brown and Watford Electronics -v- Sanderson CFL High Court decisions, which represent something of a swing back in favour of IT suppliers in IT implementation disputes, Bristol based law firm Osborne Clarke has launched a new fixed price mediation package for clients faced with IT disputes.

Called ITMediate, as long as the clients provide all the relevant information and documents up front, the firm will commit to a fixed price for preparing the submissions. Taken together with a reasonable degree of certainty as to the costs of the mediation itself - for example once agreement has been reached with the other side on how long it will take - the clients have from the outset a clear idea of how much it will cost them to go through the process.

Osborne Clarke say the Anglo case highlights the need for the customers of IT suppliers to act with care when terminating the supplier's contract, as the court has set a number of standards against which their actions will be judged. In particular customers should document all contractual failures, give clear written warnings where necessary and should err on the side of caution and allow the supplier to remedy defects. Before any termination the customer should also undertake a careful analysis of the supplier's breaches by reference to the supplier's contractual obligations.

"The case also reinforces the need for both sides in such disputes to act reasonably, and where as is all too often the case these standards have not been met by a client they may well be better off attempting to resolve the dispute by other means, such as mediation," says the firm. www.osborneclarke.com

MICROSOFT LAUNCHES MIS ADD-ON FOR OFFICE XP
Microsoft has announced a new product in the Microsoft Office XP family. Called Microsoft Data Analyzer, it will "offer innovative graphical analysis and data visualization capabilities that will enable people to rapidly identify new business opportunities, trends or issues". In otherwords it is a management information system (MIS) that will also allow information to be represented graphically in PowerPoint and Excel. Data Analyzer will be released later this autumn and Microsoft say they believe it will offer VARS and system developers excellent opportunities to use the product as the basis of specialist applications they provide to their customers. Pricing and availability will be announced at a later date.

L&H TRIO GET BAIL
After spending the last ten weeks in jail, three of the troubled speech recognition company Lernout & Hauspie's most senior former executives - Jo Lernout, Pol Hauspie and Nico Willaert - have been released on bail by Belgian prosecution authorities. The three face criminal charges relating to allegation of fraud and stock manipulation. Another former executive, Gaston Bastiaens is still in custody following his extradition from the United States. Lernout & Hauspie returns to court on September 10 to seek approval for its new corporate recovery plan.

FALCON GETS REAL AND GOES SEPARATE WAY
The Belgian legal systems supplier Falcon Software last week issued the following statement "After mutual agreement, Falcon Software NV leaves the Real Software Group as of 28 June 2001. All shares of Falcon Software will revert to the initial founders of the company. For some time, it had become obvious to the management of Falcon Software that the synergy and new business opportunities that we had hoped to achieve as a result of our relationship with Real Software, never came about. This incompatibility and the obviously different business interests of the two companies, led to the current decision."

Falcon's managing director Louis Heymans added that "We would herewith like to re-affirm our commitment to you, our clients, and will be happy to answer any questions you might have, regarding this matter." The statement concluded with the following cryptic quotation taken from Maya Angelou: "If you don't like something, change it. If you can't change it, change your attitude. Don't complain."

MICROSOFT CHANGES ITS LICENCE TERMS
Responding to the recent ruling in the antitrust case, Microsoft yesterday changed the licensing terms it imposes on PC manufacturers to install its Windows operating system. Microsoft will now allow PC makers to remove Internet Explorer icons and entries from the Start Menu, as well as provide the ability to remove Internet Explorer from Windows XP. The company also will extend this to Windows 98, Window Me and Windows 2000.

ZIP CLICK OF DEATH CASES TO SETTLE
US superior court Judge Richard Cooch, in Delaware, is expected to rule within the next few days on whether to approve a proposed $480 million settlement of a class action brought against the Iomega Corporation by users of the company's Zip and Jaz removable disk drives. The case dates back to 1996 when users first began reporting the failure of some of these disks - heralded by a clicking sound, subsequently christened the click of death - that rendered the files they contained unusable.

ONLINE DIVORCE IN A HANDBAG
Divorce-online.co.uk has signed contracts to supply the UK's leading women's portal Handbag.com with legal document services and information which will include a lawyer referral service through their partner Conquest Solicitors Network. The new channel on Handbag.com is called "Your Rights" and was launched this week. The channel will focus on legal issues from personal injury and divorce to consumer rights.

JUDGE IS COOL DUDE SAYS TEENAGE HACKER
At Swansea Crown Court, in Wales, teenage hacker Raphael Gray described Judge Gareth Davies as "a cool dude - I like him and his laptop" after he sentenced him to a 3 year non-custodial community rehabilitation order for his hacking activities. Gray, who pleaded guilty to ten charges of unlawfully accessing corporate web sites under the 1990 Computer Misuse Act and two charges of deception after posting details of more that 23,000 credit cards on his web site.

Gray said he was a "criminal crusader" seeking to highlight the dangers of internet shopping and to force e-commerce companies to improve their security. His activities, which included using one of Bill Gates' own credit cards to send him a consignment of Viagra, are estimated to have cost credit card companies more than £2 million to monitor transactions and replacing credit cards. Gray, who also had his £700 PC confiscated by the court, was arrested in his bedroom last year by agents from the FBI, Canadian Mounties and Scotland Yard's high tech crime unit.

CAN I GET A GREETING CARD FOR THAT ?
If you like celebrations or excuses for a holiday then watch out for Friday, August 3, which the US Senate has just designated as National Court Reporting and Captioning Day "in honor of the individuals who preserve the nation's history as the true guardians of the record". The date coincides with the US National Court Reporters Association celebrating its 102nd anniversary at its national convention in New Orleans. In case you were wondering "captioning" refers to close captioning - providing a text caption alternative for television programming for the hard of hearing.