Briley Law

A relatively new player in the online backup market is making some news recently. SpiderOak promises encrypted backup to the cloud. As a longtime Dropbox user, I would really need something special to pry me away from the ease of use of Dropbox. SpiderOak may have provided just that “something special.”

Cloud Encryption

Cloud backup is great. But one of the major concerns for lawyers (and I am assuming many other professions) with sending their files into the web is the security and confidentiality of the files. Lawyers have an obligation to keep client information confidential. It can be hard to argue that you are keeping files confidential when you are sending them unencrypted and stored on remote servers you have no control over (see Megaupload).

SpiderOak is the first service I am aware of where a lawyer can be certain that the backed-up files remain confidential. SpiderOak performs client-side encryption before transmitting to the cloud. That means, all files sent out are encrypted and confidentiality is maintained. It should be noted that this does not mean files on your computer are encrypted. To do that I would recommend TrueCrypt (free).

Differences with Dropbox

SpiderOak, however, is not simply Dropbox with encryption. Dropbox gained prominence because of its ease of use. Dropbox creates a folder on your computer and any files in that folder were automatically synced to the web and any other device you had installed Dropbox on.

SpiderOak splits the backup and sync functions and allows a much more granular backup and sync. When a user starts SpiderOak, they select a folder to backup. You can choose any existing folder or set of folder already on your computer. So you do not need to re-organize your file structure. Once the backup is set up on at least two devices, you can also choose to sync one folder from one device with another folder on another device. The folders do not have to be named the same (although I am sure that would help). The level of control SpiderOak gives is very convenient but does make the setup process more involved.

Cost

The other major difference at the moment is cost. Both Dropbox and SpiderOak give 2gb of free storage. Dropbox gives 500mb additional storage for referrals while SpiderOak gives 1gb. For users wanting more space, Dropbox charges $10/month for 50gb while SpiderOak charges the same for 100gb.

Both Dropbox and SpiderOak have their uses and I will probably use both moving forward. However, professionals should take a look at SpiderOak for its encryption feature as a way to ensure that cloud backups stay confidential.

European privacy regulators are currently discussing what is called a “right to forget.” Basically, the provision would allow individuals to go into social networking sites and delete or “forget” their social media history.

On the surface, the proposal seems to comport to traditional notions of law. For example, statute of limitations rules are in place, in part, because people forget and can’t be expected to defend themselves from suits years old. However, I can see no practical application that would allow a digital right to forget. Proposals are either an opt-out or opt-in solution.

Opt-out
The current proposal is an opt-out provision. Individuals would have the right to delete their information. However, this assumes that the only location of the information is at the site where the information originated. At this point, it should be common knowledge that most all social sites make money by selling user information. In addition, other sources attempt to gain the information for free by scraping the website. Thus, it seems impossible to truly delete any information once it has been shared because information online multiplies and moves to a variety of sources.

Opt-in
Another proposal is that users would have to opt-in to their information being shared or collected. For many websites, it would seem impossible to use the site at all without opting-in. Imagine using Facebook without it collecting any data on you. There could be no profile or friend list. In addition, For the same reasons that opt-out would not work, opting-in after using a site seems impossible because the information is already out there.

So, the only option that is left for a person who wants a “right to forget” is to just not share digitally in the first place. As a result, individuals will be left with a choice to either not participate in the growing global digital culture or have a permanent digital memory. Therefore, the right to forget becomes pointless as individuals must make the choice to share or not share and live with the consequences.

File-sharing site MegaUpload was taken down today. That wasn’t really surprising to me. What was surprising to many was that US and Foreign authorities arrested executives from the company and seized the company’s assets. Many are comparing this reaction to the non-reaction by the US government when Viacom sued YouTube over copyright infringing material.

The simple answer is that the response was different because this was a criminal matter. The long answer requires a look into MegaUpload’s business strategy.

MegaUpload (and many, many sites similar) is a site that allows users to upload files. Each file has a webpage filled with ads that lets another user download the file. The downloader is delayed unless he or she pays for “premium” access. The uploader also gets a cut of the income from the file.

Two factors likely pushed the actions into a criminal matter. First, there doesn’t appear to be a legitimate use to the site. I cannot think of a file that would be so large that I would need to post it to a file locker site such as MegaUpload. Most files can now be sent easily through email. The one exception may be video. Still, the government is claiming evidence shows a majority of the files (as most everyone already knows) were pirated.

Second, by paying uploaders, MegaUpload was encouraging piracy. This is a key difference from YouTube which does allow ads but does not pay for files.

Still, key to the story is knowledge of infringement. Court documents state that they have evidence of knowledge.

Conspiracy theorists may claim this is in retaliation for the dust up with UMG but likely this is a story that became criminal due to the pay to play nature of MegaUpload.

Edit: Direct from the DoJ (http://www.justice.gov/opa/pr/2012/January/12-crm-074.html)

“The indictment states that the conspirators conducted their illegal operation using a business model expressly designed to promote uploading of the most popular copyrighted works for many millions of users to download. The indictment alleges that the site was structured to discourage the vast majority of its users from using Megaupload for long-term or personal storage by automatically deleting content that was not regularly downloaded. The conspirators further allegedly offered a rewards program that would provide users with financial incentives to upload popular content and drive web traffic to the site, often through user-generated websites known as linking sites. The conspirators allegedly paid users whom they specifically knew uploaded infringing content and publicized their links to users throughout the world. “

Update 2: well it appears there were some legitimate uses for MegaUpload that I hadn’t considered such as sharing open-source software such as android roms. Ars Technica has a good run down although I still think it is likely that most content was not legitimate.

Google recently introduced tweaks to how it returns search result to make it more personalized and social.  Google is doing this by looking at what sites you have visited and what has been shared on Google properties.  How will this affect lawyers?

1. Search results will be different for each person.  Because the new Google search uses your search history, each person’s search result will be different.  This means attorney’s checking to see where they rank online will always see their site first (because they have probably visited it).  An attorney who tries to search and see what his client was searching for will see different results.  It should be noted that these functions can be turned off.
2. What sites you visit may pop up where you might not expect them.  Say for example you search for something late at night that you don’t want others at a shared computer to know about.  Now, when other users are using a shared computer, that past history item will be pushed up search results.
3. Google properties will be heavily favored in Google searches. The new Google search uses sites you have visited plus Google properties such as Google+ and YouTube.  Because of this, Google+ and YouTube results will likely be higher on search results.  For an attorney, this means you will probably want a Google+ page.

Each new year brings changes and I thought I would highlight a few of the stories that I think will be big this year.  First up, the rights to our digital purchases.

More and more people are buying digital goods like music files, ebooks and apps.  Many people do not think about what their rights are with these purchases.  For the most part, we have not had to think about it.  People typically only sell goods when they no longer have a use for them.  As new formats and new devices reach the market, consumers will be ditching their old files.  For example, a Kindle owner who buys a Nook or an iTunes user that wants to start using Ultraviolet may wonder what to do with their old files.  The user may be shocked to find that the issue of whether or not he or she own their previous digital purchases is up in the air.

Content providers are quick to note that digital content is not “sold” but “licensed.” As the purchase is only licensed, the owner of the license can restrict how the user accesses the content.  However, this is not the common perception.  A person buying an ebook would think of the ownership similar to buying a physical book.  This perception problem could lead to a debate over digital ownership this year.

One company is already starting the debate.  ReDigi is a company that provides a marketplace for “used” digital music.  Users can sell their files on the site to another user.  ReDigi claims their efforts are legal under the First Sale Doctrine but the validity of their claim remains to be seen.  ReDigi relies on a concept of ownership of digital purchases rather than mere licenses.

With more content going digital, it is important to consider the property rights involved in digital purchases and hopefully the issue will get a little clearer in 2012.