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.

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.