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Learning to learn: keeping apace with it changes

September 2005

It might be overstating it to say that there was a release of pent-up demand for technology and related legal services in 2004/5, bit it's plain that the last 12 months have seen demand for IT- and telecoms-related legal services emerge from the rain shadow of the technology bust. On the supply side, the IT industry that has emerged - leaner, fitter, more mature - has developed apace from those dimly remembered bubble days. On the acquisition side, companies are investing in IT again - even if the driver is to keep ahead of the competition or that those systems installed back in 2000 are creaking a bit.

All this, coupled with the long march of digitization, has made 2004/5 a particularly stimulating time for technology lawyers.

The announcement on the same day in September 2005 of eBay's purchase of Skype and Oracle's purchase of Siebel illustrate some of the trends and forces at work. On the one hand, eBay's purchase of Skype for up to $4.1 billion to enlarge its own franchise shows that VoIP (voice over internet protocol) has come of age as a genuine internet 'killer app' - harnessing a big technology development to an innovative personal/business application. And oracle's purchase of Siebel illustrates the quickening trends in the established enterprise software market to consolidation and globalization.

Understanding and making sense of these innovations and the change and transformation they unleash enables us as lawyers to look ahead and develop the right skills to stay ahead of the game. So that trends have these developments thrown up for lawyers and what we have seen in 2004/5? A number of examples:

Procurement machines have been refined: users have continued to become more assertive about the terms on which they buy IT and carry out IT projects: the increasingly competitive global business landscape means that large users - whether in the private or public sectors - continue to refine procurement machines to drive down cost and improve value and business practices.
Developments in corporate telecoms: the combination of innovative developments in telecoms and falling prices brought about by over capacity are enabling organizations to unify communications platforms and get greater operational control at the centre. MPLS (multi-protocol label switching) enables the delivery of standardized telecoms across different service types (such as ATM or frame relay) for the first time. This enables customers to get end-to-end quality of service guarantees for each service class and to apply and enforce tighter service levels.
The rise of open source software: competitive pressures are also seeing the increasingly widespread adoption of open source software (OSS) applications, although organizations have yet to get to grips with diminished supplier responsibility that goes hand in hand with OSS compared with proprietary software vendors' offerings.
Outsourcing matures: the same trends are fueling an increasing demand for outsourcing, both domestic and offshore. Outsourcing is now a mature industry in the UK. Its take-up is widespread but the tensions that lead a customer to go into outsourcing in the first place (reduced prices or increased service quality?) can return to haunt the relationship part way through. The rise of offshore outsourcing centres - themselves a testament to the IT industry's ability to change and evolve - has yet to fully address the challenge of higher privacy and other standards in the offshore location.
Regulation and IT: for lawyers, as business process outsourcing and IT services generally continue to move to the heart of the organization, the intersection of industry regulation (particularly in the banking and insurance areas) and IT continues to generate work. The adoption of MiFID (the Markets in Financial Instruments Directive) and what it means for the market data industry is throwing up practical challenges for IT lawyers. Continuing compliance and governance concerns about IT security are pushing BS 7799/ISO 1799 (the standards for information security and security management) up the corporate agenda. As banks and insurance companies computerize and outsource more and more processes, how far does the FSA's regulatory net extend and to what extent does it catch outsourcing suppliers?
Convergence is everywhere: the intellectual property area, of course, continues to develop fast. Convergence is everywhere. TV over mobile,. VOIP over WiFi. iPod and iTunes. Maturing of internet push services. All these are bringing about, if not coalescence of, then at least new and more extensive touch points between, previously distinct areas of telecoms regulation, broadcasting regulation, competition law and copyright.
Towards data law? The internet tends to the aggregation of data, with the creation large and increasingly valuable database archives and (for example in the financial services industry) real time feeds of market data. The William Hill/BHB case has circumscribed what people had previously through of as the limits of database right: legal rights in data are set to develop. These trends will continue over next year. For technology lawyers, understanding the law is not enough: a good understanding of the client's technology and the dynamics of the market for that technology remain indispensable. This is getting more difficult as technology continues to reach more areas and processes of business each year. But learning to learn - developing this understanding - is at the heart of what it's all about.

Richard Kemp