16 December 2008

Facebook: a new way to serve court notices?

The Times newspaper has reported a recent Australian case which has been making legal history in Australia on the issue of methods of service of court notices. The supreme court judge of the Australia Capital Territory has ruled that court notices served via Facebook are binding. The case is in stark contrast to a previous Australian ruling (by a district judge in Queensland) that service of legal documents via Facebook was not effective service as the Claimant failed to attempt to serve the documents via the methods provided by law (e.g. post).

This surprising ruling seems to turn very much on the facts of the case: the lawyers of the Claimant attempted to serve the court notice to the Defendants personally on several occasions, in compliance with the provisions of the law. However, they were unable to physically locate the Defendants.

The lawyer of the Claimant tracked down the Defendants on Facebook by searching for their email addresses (which the Defendants communicated to the Claimants earlier on) and date of birth. The judge accepted the argument advanced by the Claimant that this was indeed a lawful method of service despite not being the conventional one.

CyberPanda thinks that this is a very controversial ruling which raises a number of questions including privacy and legitimacy of notices served via online social communities as Facebook. CyberPanda is very doubtful that this ruling will have an impact in the UK: the Civil Procedures Rules in the UK have strict provisions as to the acceptable methods of serving legal documents on parties to a case and it is very difficult to see the rationale for expanding the scope of the existing rules to include online social communities. This case is setting a very dangerous precedent and CyberPanda will not be surprised if this ruling is distinguished (factually) in subsequent cases.

10 December 2008

Guess which games made it to the Top 10 piracy charts.

TorrentFreak has released the much awaited piracy chart which list the ten most pirated video games in 2008. CyberPanda is not very surprised that Spore tops the piracy charts. The number of illegal dowloads of game is reported to be in the region of 1.7 million. The high level of piracy has been linked by many commentators to the DRM associated with Spore: initially users of Spore could only activate the game three times after its installation. Although the DRM associated with Spore has now been amended to allow users to install the game as much as they like, this has not reduced the level of piracy.

This is a very interesting point and one wonders whether the lack of correlation between the new DRM and the level of piracy is due to customer alienation (due to original DRM) or whether it is symptomatic of a bigger phenomenon, namely that the technology on its own is not enough to combat piracy. CyberPanda leans more towards the latter. Many cyber-regulatory scholars have also toll the bells of the demise of law as a tool of control online and have argued that the 'code' or technology is the key to controlling values traditionally protected by law (e.g. intellectual property right). As this case shows, the situation is hardly as simple as that and one is very far from a cyber-landscape where code is key to control.
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5 December 2008

Sequel to Wilson v Yahoo UK Ltd & Anor.

The attention of CyberPanda has been caught by the recent lawsuit filed by Interflora against Marks & Spencer and Flowers Direct Online. Interflora has filed the lawsuit against the two defendants on the ground on trademark infringement. The two defendants have purchased certain keywords from Google AdWords including 'interflora' which means that each time a user searches for the term 'interflora', it is directed to the sponsored links to the website of Marks and Spencer and Flowers Direct.

The lawsuit is reminiscent of the recent case of Wilson v. Yahoo! UK Ltd & Anor [2008] EWHC 361 (Ch) which was dimissed by the High Court earlier this year on the grounds that pruchase of the keywords 'Mr Spicy' by Yahoo! did not infringe the rights of the owner of the trademark 'Mr Spicy.' This case was covered in detail by CyberPanda in an earlier publication.

It will be interesting to see whether the Courts will adopt a similar line taken by the High Court in Wilson v. Yahoo or whether this present case will be distinguished from Wilson. The present case has the potential of being a landmark hearing if it is distinguished from Wilson on either a factual or doctrinal ground.

19 November 2008

The first 'cyber-bullying' hearing in the US.

BBC New Technology has reported the start of the much awaited MySpace 'cyber-bullying' hearing in the US. The facts of the case are very much well known to all by now and have been covered by CyberPanda in earlier posts. The Defendant has been charged with conspiracy and unlawful access to protected computers under the Computer Fraud and Abuse Act. The act has traditionally been used to prosecute computers hackers. It has been applied in this instance as it is the only statute which deals , in the broadest sense, with the alleged acts of the Defendant.

The case presents a strong element of biais on the part of members of the jury as the facts of the case have been widely publicised in the media in the US and overseas. The element of prejudice will have to be carefully dealt with by the judge so as to ensure that members of the jury are aware of the nature of the charge in this case, namely unlawful access to protected computer rather than the charge of unlawful killing.

Beyond the element of biais (and the balancing act needed to deal with it), this hearing is a significant one as it is the first time that this statute has been applied to acts committed on social networking sites. The case also forms part of the series of cases which are emerging across the globe (e.g. the virtual killing of a life partner covered in an earlier post, which demonstrate that online acts in virtual communities do have an impact (even if only in the shape of a legal consequence) in the offline world.

The trial has been acknowledged as the first time the federal statute on accessing protected computers has been used in a social networking case.

31 October 2008

If you are a service provider, you better have a phone number!

Outlaw has recently commented on the ruling of the European Court of Justice ('ECJ') in the case of Bundesverband der Verbraucherzentralen und Verbraucherverbände РVerbraucherzentrale Bundesverband eV v deutsche internet versicherung AG.

The Plaintiff sued the Defendants on the ground that the latter did not provide its phone number to its potential customers before the conclusion of a commercial transaction. DIV did give policy buyers the phone number, but only after the conclusion of a contract.

The case was refered to the ECJ for a preliminary ruling on the interpretation of Article 5(1) of the E-Commerce Directive which provides that:

‘1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
(a) the name of the service provider;
(b) the geographic address at which the service provider is established;
(c) the details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner;

The ECJ was asked to adjudicate on whether Article 5(1) required websites which fell within the ambit of the Directive to provide any other additional means of contact other than their postal and emal address.

The ECJ ruled that companies have a duty to provide a means of contact on their websites in addition to their postal and email addresses. The ECJ further ruled that an acceptable means of contact includes a telephone number or a contact form that is answered within an hour.

This ruling will have a wide ranging commercial impact as it will force service providers to put in place a more advanced system to communicate with their customers than they currently do. This will have considerable financial impact on the business model of those providers.

27 October 2008

A possible sentence of 5 years for breaking, entering and killing a 'virtual' husband.

For those of us who still believe that actions on MMORPGs can never carry any repercussions in the offline world, the recent imprisonment of a Japanese woman who killed her 'virtual husband' online, should make us think twice.

The game in question, Maplestory, allows its players to participate in a number of games as well as social activities/relationships including marriage through avatars. The lady in question was virtually married to another player (who was not her husband in real life and lived 1000 km away from her). She was apparently angry when she discovered that her 'virtual' husband divorced her without informing her of the matter. She allegedly illegally accessed the log-in details of her 'virutal husband' and killed off his character.

According to BBC News, if the lady is charged and convicted, she is likely to face up to five years in prison and a fine of up to $5, 000. The BBC also reports that the lady has been imprisoned in a jail situated in the town of her 'virtual' husband.
On a technical plane, it would be interesting to find out how she was able to access his log-in details.

The legal issues posed by this case are even more interesting. Is the sentence in question proportionate to the crime? How is proportionality decided? Is the imposition of the sentence legitimate if the players are not aware of the possible consequences of their actions before / at the time they agree to take part in the game? Finally why does the town of the 'virtual' husband have jurisdiction over the matter? This case presents an interesting insight into the problems of legitimacy raised by the application of certain offline rules to virtual actions.

15 October 2008

One step closer to an Orwellian world.

What is the Government`s answer to the growing and multifold use of internet and mobile phones: a central database of the traffic generated by both technologies!! The Government justifies its proposal on the premise of 'keeping up' with new technologies. CyberPanda is shocked at this very weak and unpersuasive rationale for such a drastic proposal which is very much reminiscent of Big Brother watching you. Under the current proposal, the information about internet/mobile traffic will be kept for two years and will very likely be held centrally on a searchable database.

The Home Secretary, who unveiled the new proposal today, used all the right terminology: terrorism, sex abuse, murder, drugs trafficking to justify this unprecedented step. The loaded terminology used should not detract one away from the fact that the proposal is very much a threat against the privacy and freedom of expression of net/mobile users. There will be an opportunity for consultation before these proposals are incorporated in the upcoming Communications Data Bill. It remains to be seen what is the aim and scope of the consultation and whether it will, in reality, amend the current proposals in a substantial manner.
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9 October 2008

We give thanks for not blogging in the Italian waters.

The attention of CyberPanda has been caught by an interesting case from the Italian shores covered by The Register.

Mr Carlo Ruta has been found guilty by the courts of the offence of 'stampa clandestina' which means clandestine publication, in respect of publications of posts on his blog. In the judge`s view, given that the blog had a headline, it amounted to an 'online newspaper' and hence was regulated Law 62 (which regulates online clandestine publications). Mr Ruta was fined and ordered to take down the blog.

CyberPanda is surprised by the ruling of the italian courts and does not see how a blog can be compared to a newspaper. In addition, the argument used by the courts to reach this conclusion (namely that the blog was a newspaper because it had a headline) is logically flawed. It remains to be seen whether this very illogical and harsh ruling will be followed in the future or whether this ruling was reached solely on the basis of the content of the blog in question (politics and mafia). This ruling is a step in the wrong direction as it not only curtails freedom of speech online but also the curtailment of this right, can not be supported by a logical legal/factual argument.

Brace yourself for your encounter with Geode.

BBC News Technology has reported that Mozilla, the creator and developer of the Firefox browser has launched Geode, which is a geolocation technology. As most of Firefox`s features, Geode is an add-on feature which users add if they wish to avail themselves of this technology. It is important to point out that Geode is still at a pilot stage and Firefox is at the moment focussing on how users respond to this new technology.

One of the encouraging features of Geode is that it leaves the user firmly in control of what information is transmitted about their location. It remains to be seen how this will be achieved on a technological plane. CyberPanda agrees with the BBC that asking a person whether or not s/he wants to reveal his/her location might not be the best way forward. It would be best to find a way to gain the consent of the individual through a different means (e.g. opt-in options).
On a deeper level, CyberPanda questions the utility of personal geolocation information: it is one thing finding out where Cafe Pasta is found in Soho quite another to find out where John Doe is up. In addition, CyberPanda struggles to see how disclosure of such information (for the individual) can be justified: what greater public interest is being served by this disclosure and is the fact that the user consents to such disclosure, enough to render such level of surveillance legitimate?

8 October 2008

Patent protection for online music file systems?

Seer Systems, a US company, has been awarded patent protection for a system and method of merging various types of data, distributing the data over the internet and playing the media file. The EFF has filed a reexaminiation request with the US Patent & Trademark Office on the grounds that the system in question does not fulfill the requisite elements needed before patent protection is granted. This is an interesting case and CyberPanda agrees with the EFF that patent protection is not appropriate in this case due a lack of novelty. Another important consideration is the impact of such IP protection on technological innovations and the interests of consumers.

4 October 2008

Beware of conversations with users of TOM-skype

The Information Warfare Monitor has published damning evidence of a series of worrying acts related to TOM-skype (the Chinese version of Skype) which are taking place in China. The evidence shows that TOM-skype blocks keywords from chat conversations and more worryingly spies on (and reports!!) the contents of the messages passing between Skype users. The evidence gathered, so far, indicates that 'extensive surveillane' is taking place with 'little regard' to the privacy and security of Skype users.

TOM-skype is a joint venture between eBay and the Chinese company TOM-Online. Skype denies any knowledge of and involvement in TOM-skype's additions but it has aware of the censorship features introduced by TOM-skype.

Now this is not only a concern for skype users in China but also for any other skype user who engages a conversation with a skype user in China.

CyberPanda agrees with the EFF that Skype and Ebay have to take decisive actions to put an end to such activities. In particular, Skype has a marked responsiblity towards all its users and can not evade liability by flashing the 'We did not know it' card. Finally, it should be determined to what extent the concerned parties (Skype, TOM online and eBay) have been actively backing this extensive level of surveillance.

Disclaimer: The logo used above belongs to Skype.

1 October 2008

To pay or not to pay, that is the question.

Blizzard has won $6m in damages in the trial it brought against MDY earlier this year. In a nutshell, Blizzard brought a claim against MDY on the grounds that Glider, a software produced by MDY infringed the copyright of Blizzard in the World of Warcraft ('WoW').

The US District Court ruled that Glider did in fact break the terms of the licence which users of WoW agree to before playing WoW. Commentators have argued that the award of damages could have been more substantial if MDY did not succeed on some of the grounds it presented to the Courts. It remains to be seen whether MDY will appeal against the judgement. Readers of CyberPanda will remember the reservations advanced by CyberPanda in an earlier post on the legal reasoning used by the Courts to reach its ruling. These concerns are still very much present at the moment and in the view of CyberPanda, MDY should seriously consider appealing the ruling as the legal reasoning used to determine liability in this instance is very much overstretched and illogical.

The case is far from over as MDY is due to appear in court again at the start of 2009 when the Courts will rule whether or not has breached the provisions of the US Digital Millennium Copyright Act and whether Mr Donnelly will have to pay the damages from his own pocket.
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30 September 2008

Phorm is coming to a webpage near you today!!

BT will launch its trial of Phorm on the 30th September 2008. Avid readers of CyberPanda will remember the concerns of the Panda on the roll out of Phorm which were covered in earlier posts( here and here).

The sample users will see a special webpage when they start surfing online and they will be asked whether they want to opt in, opt out or need more information about the Phorm. BT anticipates that the trial would run for at least 4 weeks and the size of the sample is expected to be in the region of 10, 000. In the view of CyberPanda, it would have been much more effective if opt out was the default option rather than opt in as users often do not pay attention to what they are agreeing to online given their haste to start browsing. In addition, the Panda will keep an eye on how informative the educational materials (for the users who wish to learn more about the scheme) is and to what extent it really educates the users on the nature of what they are agreeing to.

If the outcome of the trial is satisfactory to BT, Phorm will be rolled out across the entire customer base of BT using broadband. This would be a worrying development especially as it is not clear at this stage whether customers would be given the choice of opting out of the scheme.

29 September 2008

The panda is back!

CyberPanda is back online after a week of holiday: well more hard work than holiday!! News worthy of mention is the launch of the UK Council for Child Internet Safety today. Its aim is to provide a safer online environment for minors by educating children about the dangers online, dealing actively with harmful content online and create a code of conduct for relevant websites.

This is right step but only time will tell whether the new council will have enough teeth to fight back against harmful content online.

17 September 2008

Phorm is being rolled out.

The Government has stated that Phorm, the online ad system, will be rolled out in the UK. Avid readers of CyberPanda will remember that this issue was covered earlier this year when the EU questioned the lawfulness of Phorm especially in the context of data protection laws. The EU asked the Government to clarify the manner in which the system tracked the web habits of net users.

The Government has now clarified the manner in which the tracking will be done. In a nutshell, trials of the tracking will only be done with the consent of the net users being tracked. In the words of the Government to the EU: 'Users will be presented with an unavoidable statement about the product and asked to exercise choice about whether to be involved. Users will be able to easily access information on how to change their mind at any point and are free to opt in or out of the scheme (my emphasis).'

The Office of the Information Commissioner has already issued its response to this statement and is in the process of analysing the reply as well as undertaking a legal assessment of the situation in the UK. So the situation is far from being resolved. It seems that the better solution would have been for the UK government to wait for the response of the Commissioner before proceeding to roll out the system here.

Phorm argues that the system is legal: profiles of the users are created on the unique ID of the user rather than the identity of the user. Phorm also argues that it does not have any information which would enable it to link the user ID to the user. One still wonders what the ID of the user reveals about the identity of the user. Surely it must contain some unique characteristic of the user in question.

Another issue is the legality of the trials which were carried out without the consent/knowledge of the net users before the EU intervened. Police investigation is currently been carried out on this matter following several complaints by tracked users, so this matter is also pending.

Phorm raising a series of complex legal and commercial issues including data protection, rights of other content owners and privacy and the Government should have awaited the final determination by the EU before proceeding forward with the launching of the project here. But yet again, it seems to be a situation of act now and take it down later if it offends.
Disclaimer: The rights to the logo used above belongs to Phorm.

16 September 2008

The internet rumour mill.

Sir Tim Berners-Lee, the creator of the World Wide Web, has told BBC News that measures should be taken to ensure that users of the internet are able to separate 'rumour' from 'real science' online. He is also concerned about the use of the internet to spread 'disinformation' (we all remember the rumours circulated online about the dangers of the MMR vaccine). He has made these comments whilst launching the World Wide Web Foundation whose aim is to ensure that the web is truly worldwide and also help users to know if websites are trustworthy/reliable sources of information.

It will be interesting to see what innovations will be made by the Foundation over the years and to what extent it will fulfilled its aims. CyberPanda is all for ensuring that sensationalist rumours do not float around in the online world, it is also equally anxious that the freedom of net users to express themselves in an online context is not curtailed.

Hence the Foundation should keep this tension in mind when considering which innovations would be helpful to prevent the net to become just a rumour mill. CyberPanda can see the merit of such innovations for websites which disseminate information mostly (e.g. websites dealing with medical conditions, news etc) but it struggles to see how such innovations can operate in other contexts where the content consists mostly of the views/opinions of the users (e.g. blogs, forums etc).
Another significant point also is who decides which information is actually misinformation. This point also needs to be kept in mind when dealing with websites which disseminate factual information (e.g. Wikipedia). CyberPanda is concerned that drastic innovations may in the long run put the brakes on online applications similar to Wikipedia.
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13 September 2008

Oink, oink is due to appear in courts.

The Guardian has reported today that the founder of Oink, a filesharing site, has been charged with conspiracy to defraud. In addition, four users of the site have been charged with copyright infringement. Oink has been closed since eleven months and the case is due to be heard at the Cleveland Magistrates Court later in September.

Oink has reportedly been one of the biggest file sharing sites online (a reported number of 200,000 users) and did not host any infringing material. On the contrary, it was a 'tracker' for BitTorrent files and allowed its users to share music. Membership to the site was free and the only way in which the site generated revenue was through occasional donations.

CyberPanda is very keen to find out what evidence led to the allegation of conspiracy to defraud. It requires a stretch of imagination to say what acts may have led to such an allegation in such a context. In addition, it will be interesting to see how the case will evolve in September and to see whether additional users are also sued.

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10 September 2008

The latest P2P case in the US.

I have come across an interesting US P2P case namely UMG Recordings Inc. v. Doe (N.D.Cal. September 4, 2008).

The facts of the case are fairly simple. The Plaintiffs discovered the IP address of the Defendant (a John Doe) who engaged in illegal file sharing and sued the latter for copyright infringement. As the Defendant was only known by his/her IP address, the Plaintiffs sought a court order authorising them to issue a subpoena to the ISP of the Defendant. The order was granted subject to an important caveat.

In this case, the evidence pointed to the fact that the Defendant was in fact a student at the University of California. The Family Educational Rights and Privacy Act at 20 U.S.C. § 1232g, provides that a college generally cannot disclose 'any personally identifiable information in education records other than directory information.' The only exception to this rule is when a college is answering a lawfully issued subpoena. However in such circumstances, the parents and students should be notified of the subpeonas in advance of compliance by the college.

The caveat of the court in this case was to require the return date of the subpeona to be calculated in such a manner as to allow the university to notify the Defendant and his parents.

This is a very interesting case concerning disclosure of the details of the infringing parties in P2P cases and CyberPanda is curious to know whether such afeguards are in place in the UK.

The lack of sophistication of Spore`s DRM.

The latest wave of controversy washing the shores of the games industry is called Spore. The latest video game developed by Electronic Arts consists of a number of anti-piracy restrictions which prevent the users from downloading the game for more than three times after purchase.

Users of the game are understandably unhappy about these restrictions and my latest visit of Amazon shows that users have rated the game one star out of five.

The disgruntled users have been complaining rather noisily on various forums including Amazon itself. The game developer argues that the DRM is common practice and will affect less than 1% of players.

Spore allows players to create beings and follow their evolution from single-cell creatures to becoming part of sophisticated civilisations and conquering space.

9 September 2008

Google now stores your personal data for only nine months.

BBC News has today reported that Google will reduce the period of time over which it stores the personal data of its users from 18 months to 9 months. The move follows the continuous pressure Google has been facing from the EU`s Article 29 Working Body ('Working Body'). The information usually stored includes the serch query, the IP number and web browser used. Google justifies the storage of such information by using the very dubious reason of product improvement and security reasons.

The move still leaves Google lagging behind the recommended 6 months storage period recommended by the Working Body. It is dubious whether the recent move by Google will be enough to assuage the concerns of the Working Body as the reason for storing and processing personal data has still not been sufficiently explained by Google. The very general reason given by Google appears to be no more than hogwash and it will be interesting to see what their response will be when they are queried over the new storage period (ie. why is it 9 months rather than 6 months).

Disclaimer: The rights to the logo used above belong to Google.

Thou shalt not upload content related to the Church of Scientology.

The EFF has reported that 4000 DMCA takedown notices have been sent to YouTube on the basis of copyright infringement related to videos containing footage and content related to the Church of Scientology. YouTube responded by suspended a substantial number of user accounts.
YouTube users have responded with their own DMCA counter-notices which means that some of the suspended content is now available again on YouTube.

It will be interesting to see what the next step of the American Rights of Counsel (the mysterious entity acting in this case) would be. CyberPanda is concerned about the liberal use of the DMCA takedown notices by the Church of Scientology and its impact on free speech.

5 September 2008

Topware Interactive and the ISP6

It has been reported that Topware Interactive, a computer game developer, has obtained a high court order compelling ISPs in the UK to reveal the identities of users who are suspected of illegal file sharing online.

CyberPanda is eager to know which ISPs other than BT and Virgin Media are involved. In addition, CyberPanda is also eager to learn what specific information will be disclosed and on what facts are taken into account, before a decision is made that a specific user might be involved in illegal file sharing. The danger here of course is that orders might be obtained against users on the basis of very flimsy factual evidence. CyperPanda is not suggesting that this happened here but it might very well happen in the future unless the necessary caveats are drawn out when the order is made, relating to how the determination of whether or not a user is a suspect, is made.

It will be interesting to see how this matter progresses and whether users will accept settlement offers or would prefer to go to trial despite the hefty award of damages that might be made against them. It will also be interesting to see which companies (and in particular from the music indsutry) will follow suit.
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4 September 2008

Google Chrome EULA Take 2!!

Proof that the big suits do sometimes listen. Google has now reworded the EULA of Google Chrome and deleted its highly controversial provision concerning copyright licence which CyberPanda covered in an earlier post. The new provision rightly leaves the rights to any content posted on or through the browser to the Chrome user.

The monumental gaffe was explained by Google as being caused by the use of its Universal Terms of Service across its different offerings for the highly dubious and slightly incoherent reason of keeping 'things simple' for users. The spokesperson of Google went further to say that at times this may mean inclusion of term which do not apply 'well' to the product in question. One has to question the due diligence, expertise and legal skills of the lawyers employed by Google, if they actually leave terms and conditions which do not sit 'well' with a product in a contract governing its use. It is even more surprising that this gaffe occured given that a similar situation occured last year when Google launched Google Docs.

Disclaimer: The rights to the logo used above are owned by Google.

3 September 2008

The audacity of Google Chrome!

CyberPanda has been riled by the EULA of the newly launched web browser by Google. Section 11.1 of the EULA of Google Chrome provides, inter alia, that by submitting, posting or displaying content, users of Google Chrome give to Google 'a perpetual, irrevocable, worldwide, royalty-free and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute' any submitted content. The aim of the licence is to enable Google to 'display, distribute and promote [its] services' and may be revoked for certain services. The user is, of course, not paid a dime for granting this perpetual and irrevocable licence to Google.

This provision poses a number of legal issues including what is the situation if the user posts materials that are owned by third parties (this remains an issue despite section 11.4 of the EULA pursuant to which users undertake that they have the right, power and authority to grant the licence to Google)? Is this clause fair to the right owners? Is Google doing enough to bring this clause to the attention of its users?

The gut instinct of CyberPanda is that such a clause should not be incorporated within the EULA unless it has been specifically brought to the attention of the user. In addition, CyberPanda is strongly opposed to the very notion of 'perpetual, irrevocable and royalty-free licence' as it leaves the right owner in a vulnerable position.

Disclaimer: The rights of the logo used above is owned by Google. Click here to access the logo.

28 August 2008

Good news for YouTube?

CyberPanda has been silent for a few days after taking some much needed holiday!!! But it is back on form and catching up with the various legal developments in cyberspace since last week. And boy are there many!! Cyberspace never stops surprising, evolving and posing new, interesting and controversial questions and this is shown by the flurry of cases that have popped up since last week.

One case that has caught the attention of CyberPanda is the decision by the federal court in California in the case of IO Group Inc v Veoh Networks. The lawsuit was filed by the Plaintiffs on the ground that the Defendant, a online video sharing website, was infringing its copyright as videos of IO Group were being uploaded on the website of the Defendant without the authorisation of the rights owner.

The judge ruled that the Defendant was not infringing the copyright of the Plaintiffs and that the former was protected by the safe harbour provisions contained in the Digital Millennium Copyright Act. The judge also took into account the 'active steps' taken by the Defendant to reduce infringing acts and its 'diligent' work to keep unauthorised works off its website when reaching its decision.

This case is of particular interest as it is very much reminiscent of the ongoing lawsuit between Viacom and YouTube. Although this case can not serve as a precedent in the latter case which will be heard in a federal district court in New York, it may still have some impact on the ensuing ruling in the lawsuit between Viacom and YouTube. It is also important not to over-inflate the impact of this ruling which was very much decided on the precise facts of the case. Viacom`s lawyers will no doubt run an argument along the lines that the Google/Viacom case can be factually distinguished from the IO Group case and as such the courts should not consider the ruling in that case when deciding their case. It will be interesting to see whether this argument will work in court and the impact of this ruling in the Viacom/Google case.

21 August 2008

The dancing baby and Prince

The courts in the US today have delivered the ruling in the case of Lenz v. Universal. The facts of the case are quite simple. The Plaintiff posted a home movie of a toddler dancing in a kitchen to a song by Prince entitled 'Let`s Go Crazy' on YouTube with the aim of sharing the video with her friends and relatives. Universal Music Corporation ('Universal'), the owner of the copyright in the song, sent a DMCA takedown notice to the user in question. The user contended that the use amounted to fair use and sued Universal on the grounds of misrepresentation under s. 512 the Digital Millenium Copyright Act ('DMCA') and tortious interference with her contract with YouTube.

Universal`s defence was that it had no obligation to consider whether or not the use by the use amounted to 'fair use' before sending the notice.

The main question which the Courts had to answer was whether 17 U.S.C. § 512(c)(3)(A)(v) required a copyright owner to consider the fair use doctrine in formulating a good faith belief that 'use of the material in the manner complained of, is not authorized by the copyright owner, its agent, or the law.'

The courts rejected the defence of Universal and ruled that copyright owners need to determine whether or not the use in question is fair use, before sending a take down notice. This is because the DMCA requires copyright owners to act in 'good faith belief that the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.' Hence to do this, the owner must evaluate whether the material makes fair use of the copyright.

This ruling is one that is grounded in logic and correct application of the legal principles as otherwise copyright owners can send takedown notices even in cases where the use in question does not infringe their copyright.

20 August 2008

EBay`s great expectations.

EBay will be launching its new business strategy today which encourages fixed-price selling as opposed to its traditional aunction business model. It will introduce a lot of incentives to promote fixed-price selling including new fee structure, greater financial protection for buyers.

The aim of this new strategy is to attempt to turn EBay into a global shopping mall rather than its current status of global car boot sale. This new strategy has been launched in answer to the growing criticisms of its buyers and sellers in the wake of various lawsuits brought against EBay by various companies as LVMH. It is also an attempt to give EBay an added edge which will enable it to compete with the business models of its online competitors as Amazon and Tesco.

It remains to see whether this new business strategy will truly benefit the individual buyer or whether the current concerns that the corporate sellers will scoop most of the benefits will materialise themselves. These new changes also mean that EBay will be more fully protected against lawsuits by corporate giants but the question of how the sale of counterfeit products will be addressed remains to be seen.
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19 August 2008

Test case on illegal game sharing online.

A test case concerning illegal game sharing online was heard this week in the London Patents County Court. Topware Interactive, the creators of 'Dream Pinball' lodged an action against a user of the game (Ms Barwinska) who shared a copy of the 'Dream Pinball 3D' online.

In the landmark ruling, the Patents Court found in favour of the Plaintiff and the Defendants was ordered to pay in excess of £16,000 in damages. The Court clearly wanted to make a substantial award of damages to deter future acts of illegal sharing. This decision will in most likelihood make users think twice about illegal sharing of games online. It has been reported that a number of users are awaiting trial on a similar issue.

Despite its obvious benefits, the ruling has also opened the floodgates in this area and one has to wonder how individuals can be expected to pay this sum of money. Surely, the host of the platforms used to share the files have a degree of liablity as they enable such acitivities to take place and hence they should share a portion of the blame. The other issue is that some users (e.g. minors) may not be aware of the nature of the activity in question (ie. that it is illegal). In such cases, it seems very harsh indeed to award substantial damages as such a sanction does not meet the requirements of fairness, transparency and proportionality. I think this case casts a strong invitation for educating particular groups of users (e.g. minors) so that they are fully aware of the nature of activity and the penalty if such activities take place. It is only then that such large awards against vulnerable groups will meet the requirements of fairness, transparency and proportionality.
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18 August 2008

A case of obvious breach and much more.

The new website Mygazines.com has caught the attention of CyberPanda. The website enables users to upload and copy various current magazines including The Economist and Men`s Health.
The web site is reported to have approximately 16,000 users who are all clearly in breach of copyright laws,

The position of the website is that the copies available on the site is similar to copies of magazines available in the waiting room of a doctor or at a hair salon. However this argument is clearly hogwash as the nature of the use in a doctor`s room and the nature of the use online is completely different. There is no infringing copying involved in the former.

The right owners are currently considering their options. The main problem is one of enforcement as the domain name of the website is registered in Anguilla. Hence US may potentially not have jurisdiction over the matter. This case presents interesting issues including copyright, jurisdiction and enforcement of judgment and it will be interesting to see how this evolves.

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14 August 2008

The sting in the Electronic Communications Data Retention Regulations 2008

The draft version of the Electronic Communications Data Retention (EC Directive) Regulations 2008 ('ECDRR') has been published by the Government this week. The proposed date of its enforcement is the 15th March 2009.

Under the ECDRR, calls, texts, emails and internet records may be kept by specified bodies (all bodies covered by the Regulation
of Investigatory Powers Act (RIPA) for period of 12 months. In addition, an ISP or a telecom company can also be served with a written notice by the Secretary of State to vary the period of storage to a different period between 6 and 24 months.

It is important to be clear about the nature of data that will kept: information concerning the time of call, the instigating number, the email addresses or URLs will be kept. However no information relating to the content of those communications will be kept. However one has to query the process by which such information will be extracted and the extent the extraction will infringe the privacy of the user. For instance, the email address of a user can reveal a lot about the identity of that user given that most of us use our surnames when creating our email addresses. Likewise, information which might seem innocent at first as the time/duration of call can also reveal much more about the user than the latter would like.

The proposed regulations need to be approved by both the House of Lords and Commons before coming into force. The Home Office anticipates that the cost of compliance may be in the region of £50 million over the course of eight years.
CyberPanda is sceptical about any legislative tool which aims at storing information which may seem on the surface to be harmless (as URLs or email addresses) but which in reality raises deeper privacy and security issues. It remains to be seen how much of the draft rules will be amended whilst awaiting assent.
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Wikipedia`s sigh of relief.

The Superior Court of New Jersey has dimissed the case brought by a literary agent, Barbara Bauer against Wikimedia Foundation, the operator of Wikipedia.

Barbara Bauer brought the case against Wikimedia claiming that the latter was liable for statements posted by users on Wikipedia. Some of the statements included she was the 'dumbest of the twenty worst' agents and that she had "no documented sales at all."

The Defendants argued that operators of 'interactive computer services' such as Wikipedia cannot be held liable for comments of its users under Section 230 of the Communications Decency Act. The latter provision does not give platforms immunity but rather requires litigants to complain against the user rather than the platform.

This is a sound legal decision which protects free speech online and also protects platforms against litigation. However, a balance needs to be achieved between the need to foster online interactive communications and protection of the third parties. Simple technological measures as moderating comments, before they are posted online, may help achieve this balance.
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Fire Eagle has its eye on you.

Yahoo! has just launched a new service called Fire Eagle which basically is a feature that assists in the management of location information. Yahoo! markets this service as being a feature which enables the net user to take his/her location to web and for each web site to become 'geo-aware' and 'respond to where users are.'

According to the BBC a substantial number of third-party developers (current figure is in excess of 50) have actually signed up to offer this feature to its users. Yahoo! has not applied this feature yet to its applications but might do so depending on its popularity in coming months.
This new feature gives rise to a number of privacy , security and ethical issues as the true impact of the feature has not so far been made clear to the end-user. In effect, the feature enables the generation, collection and storage of location data relating to the end-user.

Yahoo! has defended the new feature and has argued that the user has total control on the type of data stored. The feature will also request reauthorisation from the end-user for sharing of the data every 45 days. However this does not solve the problem of data Yahoo! shares with its partner companies. In relation to the latter, the user can opt-in the sharing scheme but the fact of the matter is that users are currently not sufficiently educated about the impact of opting-in where Fire Eagle is being used. In addition, the 45 day period is quite unsatisfactory as the data of users are shared during this period without the latter being aware of this happening.

CyberPanda thinks that the privacy, security and ethical issues raised by this new feature should have been properly considered and addressed before its launch. The current situation is quite worrying as the end-user might sign up to this service, in the belief that it is the next big thing, without being adequately aware of what they are signing up for.

11 August 2008

Worms, Trojans and Malwares: A Bad Case of Indigestion

Sophos has recently reported that Facebook is under attack by a new malware which targets the all famous Facebook 'Wall.' The post by the hacker (who impersonates a friend of a friend) on the 'Wall' invites Facebook users to click on a link. This leads the user to a webpage which appears to be hosted by Google. In reality, the user is directed to a downloaded trojan.

The head of security at Facebook, Max Kelly, has re-assured users that the company is currently working on a fix for this worm. He goes, as far as saying that the company has 'identified and blocked the ability to link to the malicious websites from anywhere on Facebook.' However, he does not explain how this has been achieved.

Without further explanation, it is difficult to understand how the malware will be effectively blocked. In particular, given that the malware can navigate Facebook in the same way as the user can, detection is very much a tricky business, even for security experts. Currently, Facebook does a number of things to protect its users. Most of its measures are reactive (educating users by posting security notices) and part of the solution could be a more pro-active stance.

Jennifer Legio has made a number of sensible suggestions on how users can be educated to prevent such situations from arising. Some of her suggestions include using instances of compromise of the network as an opportunity to educate users effectively and developing “Secure Social Network Consortium” to increase user awareness.

Increasing user awareness is no doubt a good move but it will not completely answer the issue of hacking on social networks. The response to this should be an organic one: educational, technological and also, perhaps more importantly, regulatory (identification of the hackers, sanctions against the hackers). Effective sanctions include withdrawal of access to internet, withdrawal of access to social networking sites and a strike system (e.g. one strike you are included on a list available to similar websites, two strikes you are out). It will be interesting to see whether the response in this case will be solely technological or a more organic one.

6 August 2008

The outing of the US i-Patriot Act

The media has reported that Lawrence Lessig has outed the i-Patriot Act (an act equivalent to the Patriot Act and which applies to online activities) at a conference yesterday.

Professor Lessig was reporting his conversation with Richard Clark during which the latter revealed that the i-Patriot Act already exists and the Government is waiting for an i 9/11 event (which he latter explained as not meaning a terrorist attack but rather a susbtantial event which would require the government to take definitive and strong action) to deploy it.

The act would change the manner in which cyberspace is regulated in the US and would, in all likelihood, impose tighter controls on online activities. I wonder whether this was an accident outing or a deliberate one. If it was a deliberate one, then one has to wonder whether how imminent the i-9/11 event is.

Link to image

Six degrees of separation between you and the advertisers.

The EU Commissioner, Viviane Reding, as asked the UK Government to clarify whether the use of the Phorm system is in breach of EU data protection laws in May 2008. the Government has to respond by August 2008.

Phorm is a digital technology company which has launched Open Internet Exchange ('OIX') and Webwise, which enable targeted advertising, based on the browsing habits of the users. Phorm has been in talks with some of the biggest ISPs in the UK; namely BT, Virgin Media; and TalkTalk, to this end. The attraction for ISPs and advertisers is clear as the closer the match the better. Advertisers are able to reach their target audience and the platform gets more revenue as the chances of the advertisements being clicked on by the end-user is far greater.

A quick read through the website of Phorm seems to suggest that this is a perfectly harmless activity which will improve the web experience of the user drastically. One has to wonder when an advertisement has improved the experience of its audience. Most of the time, online advertisements (just like their offline counterparts) are unwelcome at worst and informative at its best. But one struggles to see how they can stretch to improve the experience per se. The inflation of the experience as well as the constant use of the phrase 'protection of users` privacy' on the Phorm website, is a clear design by the company to hide the true nature of the surveillance taking place here.

Basically, Phorm will have equipment at ISPs which track the activities of the end user. Thus, it will note down the URL visited, search terms used and other relevant information. The IP address of the user is not captured, but a cookie with a unique number is installed on the browser of the end user.

The data collected is categorised and used to create the profile of the user. Hence, when the user visits a webpage whose adverts emanate from OIX, s/he is directed to adverts targeted to his/her profile.

BT is apparently considering starting a trial of the service in the near future. There have also been rumours of 'secret trials' having been conducted without the consent/knowledge of the end user.The Information Commission ruled in May that no action would be taken against BT as it was difficult to explain to users what was being done. However, it also ruled that any future use should only go ahead, with the consent of the users. The flaw in this ruling is quite apparent: surely the inherent difficult in explaining to the end-user what is being done, is still present: so it is very hard to understand how the nature of the difficulty has evolved so that now an explanation is more feasible.

The dangers inherent in this initiative (breach of privacy, breach of data protection etc) are very much apparent and it is very hard to see how the Government will be able to persuasively rationalise them. In addition, it is also very difficult to see the Commission approving of such a scheme. However, in the meantime, this does not put a stop to the launch of the Phorm initiative by the ISPs in the UK, which of course means that the end-user will be incredibly vulnerable until the Commission reaches a decision. A far better option, would have been to ask the ISPs not to launch this initiative until the Commission`s findings.
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5 August 2008

Stretching the Computer, Fraud and Abuse Act to its limits.

A recent development has taken place in the case of United States of America v Lori Drew.

The factual matrix of the case has been widely publicised by the media around the world. In 2006, the Defendant allegedly created an account on the social networking site ,MySpace, under a male alias. She communicated with a 13 year old girl through that account on a regular basis. At some point during those communications, the Defendant, said hurtful things to the young girl. Shortly, after those communications, the young girl killed herself.

The Defendant in this case has been charged with infringement of the Computer Fraud and Abuse Act ('CFAA').The Prosection alleges that the use of a fictitious name, registration information and hurtful speech by the Defendant was in breach of the terms of service of MySpace. In particular, the Defendant has failed to provide truthful and accurate registration information, has used the information obtained from MySpace to 'harass, abuse, or harm other people', has solicited 'personal information' under 18s users, has promoted information that she knew was false or misleading, and has posted photographs of other people without their consent.

The case built by the Prosection has been heavily criticised by the EFF, in the United States, who has filed an amicus brief on Friday, arguing that the criminal charge for violation of the terms of service is a 'dramatic misapplication' of the CFAA with 'far-ranging consequences for American computer users.'

The aim of the CFAA is to sanction what are commonly known as computer hackers and it is, indeed, a stretch of legal interpretation as well as logic, to apply this act to the present case which concerns terms of use. It is, of course, undeniable that, if the Courts find that the Defendant`s actions have directly or indirectly led to the death of the young girl, then these actions need to receive an adequate penal sanction. However, stretching the current law so as to impose a criminal sanction under the CFAA for breach of the terms of use is not the right answer.

31 July 2008

The overnight metamorphosis of Scrabulous.

Following the lawsuit filed by Hasbro, which was reported on this e,arlier last week, (the owner of Scrabble`s rights in the US and Canada), the creators of Scrabulous have uploaded a more novel version of Scrabulous on Facebook, namely, Wordscraper.
A number of changes have been incorporated in the new game other than the name change in an attempt to avoid liability including circular word tiles, re-arrangements of the scores of the tiles, and introduction of tiles earning quadruple
It will be interesting to see whether the Courts will rule that these changes are sufficient for the owners of Scrabulous to escape copyright/trademark infringement liability.

Proposals for the Child Internet Safety Council.

The Culture, Media and Sport Select Committee has been reviewing safety online and has criticised video websites as YouTube for the lack of adequate control over the published content. The Select Committee has called for a new industry body (Child Internet Safety Council) whose role would be to protect minors from harmful content. In addition, it has recommended the proactive review of content by the platform, reclassification of video games and speedier removal of illegal content by the platform. C

Currently, platforms as YouTube remove child
abuse images within 24 hours which the Committee has tagged as a"lax" approach.

CyperPanda is glad that the Committee has remarked that the current trend of removing the offending images after posting is not actually an adequate measure. It is ovbious that a more appropriate approach would be for the infringing activity not to take place in the first instance. These recommendations should be used as an impetus to rethink seriously how such activities can be stopped by a consistent, fair and transparent regulatory framework and put an end to the current approach of passive reaction from platforms.

30 July 2008

'Mere vulgar abuse' is the saving grace of bulletin boards users.

A flurry of cases are being dealt with currently by the Courts in the United Kingdom concerning breach of privacy and defamation following the sensation ruling in Max Mosley v Newsgroup Newspaper Ltd , where the judge ordered the News of the World to pay Mr Mosley £60,000 in damages for breach of privacy.

Mr Justice Eady had to deal with a similar case on the 25th July 2008 when hearing the case of Nigel Smith v ADVNF Ltd & Ors. The Claimant brought a claim in libel against the Defendants (which consisted of various individuals) in relation to comments posted on a bulletin board online. The central claim of the Claimant was that he "suffered a sustained campaign of vilification and defamation" by various users of the financial website, ADVFN. He also alleged that these very users also posted the alleged defamations on other financial websites.

An interesting part of the judgment is the section in which the judge considered the nature of communications on online bulletin boards. The judge noted that usually posts on bulletin boards are read by few people with a shared interest in the topic in question. Any contribution to the bulletin board is more akin to contribution to a casual conversation. The judge also argued that such posts are 'often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or give and take.' The judge also noted that the fact the most users posted under pseudonyms or "avatars" had a considerable impact on the nature and content of the exchanges.

Bearing this in mind, the judge came to the conclusion that such posts are more akin to slander (if defamatory).The judge in this case concluded that comments amounted to 'mere vulgar abuse,' bearing in mind the context of these conversations where 'people are just saying the first thing that comes into their heads and reacting in the heat of the moment.' In these circumstances, the judge ruled that the Claimant was not entitled to sue the users of the bulletin board. The case against the platform itself is currently on hold until the Claimant is able to pay the cost award to the platform.

CyberPanda agrees with the substance of this ruling. This case could have heralded the end of open discussions online as the Claimant issued claims against over 27 users. In my view the judge considered a number of additional points (other than the nature of the communications) when reaching this decision including the lack of deep pockets of the sued users, the inability of the Claimant to pay the costs of the Defendants (if he lost the case), and freedom of expression generally. CyberPanda also believes however that more safeguards (whether legal or technological) need to be in place to protect the reputation of people online as well as users of facilities such as bulletin boards.

29 July 2008

Facebook`s shanking misery and the message from earth project.

Facebook came under intense scrutiny last night after it emerged that its Superpoke! application enabled Facebook users to 'shank' (slang term for knife) each other. The Superpoke! application enables users to perform a variety of actions (e.g. send a sheep, slap, hug, dance etc). The application is provided by the US Company Slide and the 'shank' option has now been removed from the Superpoke! application. This is hardly a satisfactory solution as surely the option should not have been there in the first place. However, it seems a common mode of sanction of online activities (as copyright infringement, defamatory statements etc) consists of merely removing the offending item from the website. This is of course far from satisfactory as in the offline world, such activities are much more severely reprimanded. This story shows how unsatisfactory the current regulatory framework for online activities is.

On a lighter note, the Guardian has reported today that Bebo will launch 'The Message from Earth Project' on the 4th August 2008. The project will invite Bebo users (and rather optimistically celebrities and politicians!!) to submit messages and pictures to be sent into space. Bebo users will then vote on which messages/pcitures should be sent and the 500 most popular ones will indeed be sent into space on the 9th October. Interesting, controversial and somewhat wacky use of the technology!!!

28 July 2008

Latest case relating to keywords and sponsored links in the US.

My attention has been caught by the newly filed lawsuit in the US of Rosetta Stone Ltd v Rocket Languages Ltd. The Claimant (or Plaintiff to use the correct US terminology) alleges that the Defendants have infringed her trademark on the grounds that the Defendants (which are competitors of the Plaintiff) use the mark 'Rosetta Stone' as keywords for sponsored links on search engine technologies (e.g. Yahoo and Google).

The Claimant also alleges that the Defendants have damaged the mark itself by various advertisements as “Rosetta Spanish A Scam?” or “Read These Reviews Before Buying Rosetta Spanish!” The Claimant makes a few more allegations and they have been very adequately covered by Evan Brown in his post of the 16th July 2008. I do not propose to rehash these here.

As always the US is miles ahead of us and has taken a very decisive stance against the infringement of trademarks in the context of sponsored links and keywords. I would not be surprised if this case was again decided in the favour of the Claimant and it would be the right decision on the basis of the pleadings filed so far.

However, it brings the question of where the law on keywords and sponsored links is heading to in the UK. The relatively recent ruling of the High Court in the case of Wilson v Yahoo has confirmed that there is no trademark infringement even in cases where a keyword identical to a the trademark of a third party is used by an advertiser in relation to identical goods or services as long as such use does not affect the interest of the owner of the trademark, bearing in mind the function of the trademark (ie. guarantee of origin). This has led to a relaxation of the policy of search engine providers as Google and to the commercialisation of keywords which are identical to brands or trademarks in the UK. Of course, this is completely unsatisfactory and i think serious thought should be given to the evolution of the law on keywords and sponsored links in the UK. CyberPanda is anxiously awaiting the decision of the ECJ on 3 recent french cases (Google v Louis Vuiton Malletier etc) raising this very same issue.

25 July 2008

Absolutely Fabulous Scrabulous? Or Absolutely Fabulous Infringing Game?

Today, BBC News has reported that Hasbro, the right owner of Scrabble in the USA, is suing the creators of Scrabulous, which is available on Facebook, on the grounds that Scrabulous infringes its copyright and trademark.
Before filing the lawsuit, Hasbro requested Facebook to take down the application back in January 2008, but the latter refused to do so. The fact that Scrabulous in one of the most popular applications on Facebook and attracts over 595,000 active users daily might have had something to do with this decision.
At this stage, Facebook has not been joined to the lawsuit but it might be at a later stage. In addition, the rights to Scrabble outside the US are owned by Mattel which is not involved in this current lawsuit.

It will be interesting to see how this case evolves and how the proliferation of similar applications (e.g. Starbucks, Swarovski & Louis Vuitton applications on Facebook) can be successfully regulated and monitored.

A sensible option in some cases, might be for the rights owners and the creators to negotiate an agreement with which both parties are equally comfortable rather than the imposition of a downright prohibition on use which might not be in the interest of creativity. A fine balance has to be maintained between the protection of the rights of owners and the opportunity for creativity by developers.
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24 July 2008

What the ISP6 are not telling you

The six biggest ISPs in the UK namely, BT, Virgin, Orange, Tiscali, BSkyB and Carphone Warehouse ("ISP6") have today signed a Memorandum of Understanding ("the Memo") drawn up by the Department for Business, Enterprise & Regulatory Reform (BERR) in the UK to deal with illegal file sharing of music and films online. The Memo has also been signed by the British Phonographic Industry, the Motion Picture Association (MPA) and endorsed by the Anti-Film Theft Taskforce.

The immediate effect of the Memo is that net-users engaging either knowingly or unknowingly in illegal file sharing online are now liable to receive a letter from their ISP informing them of the breach in question. The interesting point is really the number of actors involved before a user can be identified. The BERR is quick to point out that there is no policing of the accounts of net-users and is very quick to rationalise the nature of the "surveillance" at play before a net-user is identified. It describes the process in the following words:

This rationalisation, however, does not hide the level of "surveillance" at play here before illegal activities online can be tracked down. Two issues are raised by this quote. The first one is raised by the second line in the above quote which states that right holders are able to identify the IP addresses of users. It is not uncommon for an IP address to contain information which can identify the user. This all depends on the information you have given to the ISP when creating your account. But at the very least, most of us do give our surnames away when creating an account with an ISP. The worrying fact here is that such information can be included in the IP address. The right owner may thus be able to identify the user.

The second issue raised by this quote relates to the process by which ISPs can identify IP addresses. This process is not explained and this raises a lot of concerns for the net-users. If I bought a CD from HMV and the latter was later able to track down my address, the question would arise as to how this was made possible. In the interests of openness, transparency and fairness, the nature of this process should be disclosed to the public to ensure that we are aware of how this information is being gathered. I am not against this initiative in theory, however, Ithink a greater level of transparency and openness is required.

This brings me to my second point: what happens after the letter is sent to the net-user? It seems that the Government is in favour of various sanctions as slowing down the internet connection of the user, the three strikes you are out approach etc. The ISPs so far have not agreed to any of these sanctions. Hence, there is a lack of clarity as to the next step in this process which is the most crucial one: the sanction. It is abundantly clear that few net users will be deterred from engaging in illegal file online if they only get a letter from their ISPs. A more robust approach, as with every prohibitive legal framework, is required and in this instance, the nature of the sanction itself is the key to effective and real action against illegal file sharing online.

In all fairness, one has to note that the Government has also launched a consultation today on the legislative options to tackle illegal file sharing of film and music online. But in my view, a range of sanctions should have been agreed amongst all the relevant parties before this agreement was publicised. A regulatory framework is much more effective and acts as a deterrent if the key elements of the framework, namely, rights, obligations, sanctions etc are clearly identified at the time of imposition on the relevant persons. CyberPanda will keep you posted on how this initiative evolves and whether or not these concerns are addressed.

22 July 2008

Here comes the "look and feel" debate.

The Financial Times has reported that Facebook has filed a lawsuit in the US against StudiVZ which is a popular social networking website in Germany.

Facebook alleges that StudiVZ has breached its copyright by copying "the look, feel, features and services" of Facebook. Facebook alleges that StudiVZ has copied a substantial number of the design features of Facebook including the "Wall" which is unique to Facebook. Finally, Facebook alleges that the difference between the two website is only "nominal" and consists only of the red colour scheme of StudiVZ instead of the blue colour scheme of Facebook.

StudiVZ strongly denies these allegations has issued a statement issued over the weekend stating that Facebook is "arrogantly laying claim to an international monopoly" and denied having received any legal complaint from Facebook so far.

Having quickly road tested StudiVZ, I have to agree that it does seem to be a similar website to Facebook and that its design is quite similar to Facebook`s design. Does this similarity amount to copying the look and feel of Facebook is however a far more complex question than that. Some cynics argue that this lawsuit is fresh on the heels of Facebook`s unsuccessful attempts to break the German market.
In my view, this is far too simplistic an approach. Surely Facebook faces competition in various jurisdictions with the emergence of new social networking sites. And surely, it will be the most costly marketing tool, if it sues each site which is more popular than itself. In my view, there is a lot of merit in the lawsuit of Facebook and it will be interesting to see how this case evolves.

21 July 2008

Yesterday, you were cheating whilst playing the latest MORPG... Today, you owe the software company million of dollars for breach of copyright!!!

The District Court of Arizona has rendered the much awaited ruling in the case of MDY Industries LLC v Blizzard Entertainment Inc and Vivendi Games Inc.

Blizzard Entertainment Inc. and Vivendi Games Inc. ("Blizzard") are the creators, operators and copyright owners of World of Warcraft ("WoW") which is one of the most popular MORPGs. Players are allowed to do a number of things when using WoW including fighting with monsters, acquiring new skills, interacting with other players and characters of the game. The use of WoW is governed by two separate contracts namely, an End User Licence Agreement ("EULA") and Terms of Use Agreement ("ToU"). Players are required to agree to the terms and conditions of both contracts before playing WoW.

MDY Industries LLC ("MDY") are the owners, creators and operators of the software program WowGlider ("Glider") which is a "bot." What this means in essence is that Glider plays WoW for its owner whilst the latter is away from his computer. The advantage of Glider is that it enables the player to advance more quickly in the game than would have otherwise been possible. MDY filed an action in court in the first instance seeking a declaration that Glider did not infringe the IPR of Blizzard. Blizzard, in turn, filed a counterclaim and third-party claim against MDY on seven grounds including breach of copyright. This post will focus only on the copyright infringement claim.
Blizzard submitted that the users of WoW are in fact licensees who are authorised to copy the copyrighted game client software only if they do so in accordance with the EULA and the ToU. In this present case, Blizzard contended that users who launched WoW using Glider were actually acting outside the scope of license granted to them by the EULA and ToU and were in fact creating infringing copies of the software in question.
MDY`s answer to these submissions was that, if there was any breach by the users, it was actually a breach of contract (EULA and ToU) rather than a breach of copyright. MDY argued that users of Gliders do not infringe the copyright of Blizzard as they are licensed to copy the game client software to the computer`s random access memory. This licence is acquired upon purchase and loading of WoW. MDY accepted that the EULA and ToU contained express prohibitions on the use of bots. However, MDY argued that the use of bots by users of Glider was a breach of contract rather than breach of copyright.
The Court carefully considered the terms of the EULA and ToU and in particular paid specific attention to section 1 of the EULA which addresses the nature and scope of the licence Blizzard grants to users of WoW. The judge ruled that in this case, the licence Blizzard grants to users of WoW is limited in scope by the EULA and ToU as this is expressly provided by the aforedmentioned contracts. Hence, the actions of the Glider users do infringe the copyright of Blizzard.
This is a very interesting ruling which has attracted a lot of criticism from the EFF . The concerns of the EFF are to some extent justified: if an individual who is breaching the terms of the contract of use is actually found to be in breach of copyright, s/he will be liable for far more in terms of damages. However, this does not detract from the fact that in this instance, a true construction of the EULA and ToU supports the conclusion reached by the Court.
When the right legal approach gives way to the wrong factual answer, the real question is how does one redress the inherent flaw within the mechanism which leads to the incorrect answer. This ruling further supports my view that the current legal framework of "old wine in new bottles" does not satisfactorily answer the legal issues posed by cyberspace. This ruling is more a case of old wine in new bottles gone bad... Let`s see how the sequel pans out in the appellate courts.

Disclaimer: The copyright in this image belongs to WOW.

17 July 2008

Clamping down online IP crime.

My attention has been caught by the relatively recent release of a strategy paper by the Department Department of Culture, Media and Sport entitled "Creative Britain: New Talents for the New Economy."

The strategy paper recognises the need for "a balanced IP framework relevant to today’s world... [the] need [for] new business models which recognise changes in technology – and their democratisation of content – yet capture the value provided by content producers and distributors. "The strategy paper forcefully makes the point that the Government is determined to tackle "IP crime" by adopting several measures as educating creators on their IP rights, voluntary agreements between ISPs and content owners and / or more formal regulatory framework to deal with IP crime which reflects the changes in the business models.

In the first instance, the Government would prefer voluntary agreements between ISPs and right owners . However, the Government has made it clear that if this does not materialise itself, it will legislate in this area as it sees fit. The Government anticipates the new regulatory framework to be in place sometime in 2009, so CyperPanda will be watching this space.

It also appears that the British Government is working in collaboration with the French Government on this matter. This, of course, does not mean that the French measures will be adopted here but it will be interesting to observe how the regulatory framework will evolve in France as well.

It is undeniable that ISPs should bear some responsibility for the materials that are published on their websites. However, the nature and extent of their responsibility should be a realistic reflection of what they can do rather than an unrealistic reflection of ISPs as cyberpolicemen. The Government needs to think carefully how to balance the responsibility between ISPs, content owners and other stakeholders and ensure that the ensuing framework is a realistic reflection of what can be done by each stakeholder to combat online IP crime .