Harry Small – new Joint Chairman (Law) of SCL

March 1, 2000

He is apartner in Baker & McKenzie. He lectures and writes regularly on mostaspects of information technology.
This is an edited version of an informal interview with Laurence Eastham, themagazine’s Co-ordinating Editor.

LE: Can you tell me first a little about your background?

HS: My own personal background is actually very conventional, I wentto a Home Counties grammar school, to Oxford to read law and I then did articlesat Linklaters & Paine, a very pleasant place to work in but a veryconventional City firm. I had no ambition to do IT law before I started althoughI did have an interest in computers. One of the strange and sad things about meis that in the sixth form I studied A-level Latin; that required a knowledge ofthe scansion of Latin verse and I am the author of a computer program (which Ihave somewhere) written in Basic and executed on punched cards at the localpolytechnic, to scan Latin hexameters. But I always regarded computers as aminor interest, not even my main hobby, and I had no intention of becoming an ITlawyer when I chose Linklaters to do my training contract. During training, I,like many others, became relatively disillusioned with plain corporate law whichheld no intellectual interest and I found my first niche in the excellentintellectual property department of Linklaters. One of the main things that theintellectual properties department did was counterfeiting work. I traced fakejeans and in time I traced fake computer programs as well. In the course oftracing fake computer programs, one of the things that you have to do is toevaluate a given program to see if it is original over others and I actually goton quite well with computer people. I interviewed people in software developmentand people in the industry something gelled. I was interested, not inthe product particularly, but in the way the industry worked. It wasfast-moving, young and different.

LE: Were you still training at that stage?

HS: By then I had qualified into the IT department. So I found myselfspending more and more time with IT clients. I got what I believe was the firstAnton Piller order against fake computer software in a case called Digital vDarkcrest. I got into IT law, like many people get into most things theyenjoy, almost by accident.

LE: But you must have been surrounded by lawyers in the same field,who knew nothing whatsoever about computers. I suppose your knowledge of thingslike writing a program for instance was an advantage.

HS: It doesnt harm. But this gives me the chance to say onething that I do think is very important. IT lawyers mustnt forget thatthey are IT lawyers. There is a tendency amongst everyone who claims topractice IT law to forget that they are a lawyer and they tend to try to be anIT consultant. We have seen so many systems go wrong I do feel that I could makequite a living in IT consultancy, but it is wrong because it is not myexpertise. It is therefore important to remember that you have to be a goodlawyer first and though it is equally necessary to be competent and have anunderstanding in what goes on in the IT field that is nevertheless secondary.You dont have to have an ability to write programs, but you do have tohave an ability to understand how programs are written.

IT law has changed a lot since there were perhaps five IT practitioners inthe whole country in the early 1980s, including one ex-chairman of the Society,Christopher Millard, the Senior Partner in my own department here at BakerMcKenzie, Don Gerrard, my old boss Robert Swift and a very few others. Lifeschanged since then. There are lots of people who legitimately call themselves ITlawyers, but that is not surprising because IT is forming an ever more centralpart of our lives. So I am not surprised that the numbers have gone up becauseby a factor of many hundreds, more people want the basic IT law services software licences, software development contracts, systems contracts many more of these are needed than were needed in the early 1980s. But I dontthink that the explosion of numbers of IT law generalists is at all the samething as the relatively small number of people, and I am not blowing only my owntrumpet there are plenty of other people in other firms who are like this too,who have a reasonable exposure to the cutting edge.

Now the way things are changing in my view, is like this. First of all intechnical terms the thing that has changed over the last five or six years isthe growth, to an almost universal extent, of network computing. Computers usedto stand alone, or if they were networked there was a big mainframe and lots andlots of dumb terminals. Now distributive processing PC networks and of coursethe Internet (which is just an even bigger PC and UNIX network) is the rule. Sothe law of contract has to take account of how computers communicate as well ashow a given stand-alone computer works. And how do computers communicate? they normally communicate down the telephone line. That brings us toconvergence.

I dont think it is possible to be a competent IT lawyer todayunless you have some added competencies over and above the basics on hardwareand software contracting that you had seven or eight years ago. You have to knowabout communications you have to understand how communications work. I spend alot of time drafting service level agreements for example and reviewing servicelevels. You need to understand how a computer network operates in order to dothat. I have to have the ability to call up reliable and fast advice on telecomsregulation because most networks are international. Is it permissible to have aprivate network between here and the Czech Republic? I dont know theanswer but I know someone who does.

The second thing is that you can, over those networks, not just communicatewith each other, but do business with each other. Which brings me to the othergreat buzzword: e-commerce. That is the future of the cutting-edge of IT law.

LE: E-commerce is a term that seems to mean different things todifferent people.

HS: In terms of IT law practice, it is certainly more than softwarelicensing. The best I can do is to say that e-commerce is a great bundle ofissues. There is a lot of intellectual property domain names and howthey relate to it. Traditional intellectual property lawyers are verysingle-country based you can have a trademark in the UK, a trademark inFrance and a trademark in Germany and it doesnt matter if there theyare different, it doesnt matter if people own the same trademark indifferent countries for different goods. The Web and domain names force you toreconsider that. So intellectual property lawyers have had to do a lot ofrethinking. Contract lawyers also need to do a fair amount of rethinking. It isvery difficult to say that a transaction is an English transaction because therewill be more and more conflicts between the law of the server and the law of thereceiver. We are going to have to develop much more complicated ways, or moreaccurate ways, of resolving conflicts between jurisdictions.

LE: That raises one of the difficulties I have about what is an ITlawyer now. Obviously when you are acting principally for the IT industry, thenit is easy to say ‘Yes, he is an IT lawyer, but in e-commerce youcould be acting for anybody in relation to their future contractual requirementsand its a different ball game isnt it. It opens the horizonsso wide.

HS: Indeed it does open the horizons but it doesnt open themso wide that you cant draw boundaries because we are still talkingabout computers. An example of the new style of IT law I do might illustratewhere the boundaries go. I was acting not for an IT company at all – although wehave always acted for non-IT companies, because there were always buyers ofcomputer systems even ten years ago. I was acting for a multi-nationalcorporation who did all their trade on the telephone and by letter and theydecided that they needed to do business online instead, so instead oftelephoning the local UK subsidiary or local franchisee of Widgets Inc, youlogged on to www.widget.com and you ordered your widgets online, either througha previously established credit account or by handing them your credit carddetails. Now a good IT lawyer can have a real impact on the business there,because I need to hold the hand of Widgets Inc, basically to draw the algorithmsof what happens when you hit www.widget.com where you went if you wereFrench, establishing a filter making sure you consented to doing things inEnglish and so forth. I found that quite challenging and quite interesting. Andthat I would say was a legitimate expansion of the IT lawyers trade.Now it requires a lot of contractual expertise, but it is the combination ofthat contractual expertise and understanding what on earth is going on behindthese Web sites that actually means that you add value to your clients.

The explosion of numbers of IT lawyers is something that I actually welcomebecause there is plenty of work for everyone. There was work that was the heightof specialty 15 years ago, which then seemed very esoteric (like very ordinarycommon or garden software licences that perhaps five people in the countryunderstood but now five thousand people in the country understand). Thatsgood; thats the spreading of knowledge. There will always be thecutting-edge and that cutting-edge will keep on cutting, but of course it willbroaden behind that and thats a good thing.

LE: Listening to you talk, and your evident enthusiasm, it is clearthat you are going to be drawn to that cutting-edge. I cant imagineyou sitting back and saying well Im an expert on software licences andthats all Im going to do.

HS: No absolutely, it is a personal ambition to have new andinteresting areas of law. I should say to all my clients that the more softwarelicences they send me the happier I shall be. But I may be training people howto do that rather than doing it all myself. But yes, my ambition is to cut thecutting-edge.

LE: You are never in any danger of commoditisationin that sort of area.

HS: No because the cutting-edge is always moving and thecommoditisation is coming behind it. That is true but that is notunique to IT or any other branch of law; it happens all the time in every branchof law.

LE: And there are certainly going to be lots of intellectualchallenges ahead.

HS: Yes and absolutely the more so as different countrieslaws clash more and more. Now I dont want to give the impression thatthat is unique. We have had different countries law clashing in manyother fields like international trade we have been sending shipsbetween countries for thousands of years and we have developed a way of dealingwith that. I dont want to give the impression that there areinsoluable problems. Furthermore I certainly do not want to be seen to besubscribing to the view that the Internet is a lawless jungle and because thereare so many different laws that might apply we can apply none. If there is aproblem with the Internet it is that it is over-regulated and notunder-regulated. It is the clash of too many laws not the absence of laws.Anyway the old Chinese curse, may you live in interesting timesis certainly borne out here.

LE: Turning to SCL and your recent elevation to become Joint Chairman,how long have you been involved in SCL?

HS: I have been a member of SCL since 1991. I have been to most of theSCL major conferences and have spoken at many of them and I have played areasonably active role on the executive in the last year and a half.

LE: What are your ambitions for SCL?

HS: The SCL is a great organisation and my predecessor ProfessorChristopher Reed has very much contributed to keeping it a broad-based societyof IT lawyers and IT practitioners. What I want to do is harness the range oftalent which we have in the organisation to broaden the base of people who are activelyrather than passively involved. And the members may find me and the SCLExecutive getting tiresome about pressing more and more people. We want to getmore people involved and we are going to be asking more people to get involved.We are going to set up a large number of working groups.

The purpose of those working groups is firstly to enable SCL to do moreresearch and influence government and the legislature more on a large number ofimportant legal initiatives that are taking place. Also I feel that a society isfor its members to be involved in as much as it is simply to provide them with aservice, although that is important in itself. I am very happy if members justwant to be members and read the magazine but I would be even more happy if theywere contributing members going along to relevant local or specialist groupmeetings, participating in the Societys working parties, writing forthe magazine and contributing to the online discussions on the Web site. I wouldlike to encourage people by whatever reasonable means possible (knowing that weare all busy people) to be contributing members rather than just members. Thatis my vision.

LE: The question of influencing government raises a possible problem.You have been involved in committees as an adviser but from SCLs pointof view there is that difficulty in defining the difference between advising onoptions and being involved in quasi-political issues.

HS: I dont think we want to get involved in political issuesas such. I am concerned that we should steer clear of blatantly politicalissues. I will give you an example of a political issue in which I dontthink SCL should get involved the issue of the liability of serviceproviders for inappropriate or illegal content, either uploaded to sites bytheir customers or requested by their customers from other sites. I have apersonal view on that but what I would like SCL to do there is to make sure thatwhatever law does come out on that particular issue is drafted sensibly andcompetently. There is a difference between those two positions. We want toimprove the technical quality of IT law but it is not our job to get involved inthe political rights and wrongs of, for example, whether a given activity shouldor should not attract criminal sanction. I do believe that there is adifference. We can help Brussels and London draft better laws without involvingourselves in the political decisions that London and Brussels have to make.

LE: So it is a case of saying to them As your draft standsthis could have x effect. Is that really what you want?

HS: Or we know that your political imperative is this. This draft doesnot achieve it because…

LE: You mention Brussels influencing Brussels is obviouslyrelevant as well as influencing government. Is that another of SCLsaims?

HS: Yes, because the laws of this country are, rightly or wrongly, toa very significant extent, made in Brussels and I see it as perfectly within theSCLs remit to influence Brussels as it is to influence London orEdinburgh or Cardiff or Belfast.

LE: How do you personally feel about SCLs involvement inUKILELI?

HS: I am very proud of SCLs current role with regard toaccess to the law on the Internet. I want to pay a special tribute to LaurieWest-Knights for the single-minded dedication with which he has pursued theUKILELI project, which will help achieve a laudable and charitable objective ofbringing statute and judge-made law to the population instantly and free.

LE: Is it going to happen?

HS: I see no reason why it should not happen. The money is there, thewill is there. We had better make sure it happens, hadnt we?

LE: Finally, what do you see yourself doing in ten yearstime?

HS: I see myself involved in high electronic technology. I am verypleased to be able to say that I dont know what I will be doing in tenyears time, because half the fun is being surprised by new technology.I will be just as interested in it though and I shall certainly still be workingin the field.

LE: Thank you for your time and for such a fluent contribution.