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.
Disclaimer: This image is subject to copyright. Click here to view the original image.

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 .

16 July 2008

Is the silver lining in the cloud hanging over YouTube no more than a silver thread actually?

It appears from the website of the Electronic Frontier Foundation that Viacom has formally responded to the concerns of the EFF in relation to the nature of the silver lining reported in the last post.

The EFF was concerned that the agreement between YouTube and Viacom in relation to the disclosure of the data of users of YouTube was not backed up by a court order. The obvious danger with that is that both parties can alter the agreement at a later date.

Viacom has now informed the EFF that the latter will be notified in advance if the agreement is to be amended so that the EFF can either discuss its concerns with YouTube and Viacom or raise more formal objections in Court.

Viacom has also forwarded a draft Protective Order to the EFF. CyberPanda agrees with the EFF that it is crucial that the scope and nature of the disclosure of the data should be formally defined by a court order. It is undeniable that Viacom has shown a lot of goodwill in this matter. Nonetheless, it will be in the best interests of the data subjects if the disclosure was more formally regulated by a Court order. That will breach the gap between the silver thread and the silver lining.

15 July 2008

The silver lining in the cloud hanging over YouTube.

Users of YouTube and indeed YouTube itself will, no doubt, be relieved that Viacom has now agreed for YouTube to handover the viewing history of its users without handing over any data that might enable Viacom to actually identify the specific user.

This is a welcome development which will no doubt be applauded by privacy activitists and users of YouTube as well since the original demand would have undoubtedly raised serious privacy concerns.

This is however a very tiny silver lining in the big cloud hanging over YouTube as the copyright infringement lawsuit is all but over.

It looks like the luck of Ebay might just be changing!!

The long awaited ruling in the landmark trademark trial of Tiffany (NJ) Inc. and Tiffany and Company v. eBay Inc is here at last!

Yesterday the District Judge Sullivan of the US District Court, Southern District of New York, delivered the ruling in favour of eBay which will, no doubt, breathe a sigh of relief after the scathing rulings of the French Courts earlier in July in actions brought by LVMH and Hermes against eBay.

The first allegation by Tiffany was that eBay "actively advertised the availability of Tiffany merchandise" on its website and using sponsored links on Google and Yahoo!. The judge ruled that the only way a "Tiffany" product could be described by sellers was to use the brand "Tiffany."

The second argument of Tiffany was that eBay should be held liable for the sale of counterfeit Tiffany products on its website. Taking into account the fact that eBay acted promptly once it was notified of infrigements by Tiffany, the judge reject the theory of "infringement in the air" advanced by Tiffany.

In short, this judgment from the US clarifies that it is the job of the trademark owner to police its mark rather than the job of the platform.

This judgement will no doubt be welcomed by all the intermediaries and, in particular, eBay whose business models were very much threatened by the recent rulings in the French jurisdiction.