IMPACT®

Facebook Firsht

2008-10-16T18:54:23+01:00

Creation of a fake profile on Facebook – the popular social networking website - by a former school friend has resulted in an award of £22,000 in damages to businessman Matthew Firsht and his company, Applause Store Productions.

The case illustrates how a determined claimant can prove the source of internet posts.

Background

In July 2007 Mr Firsht, the claimant, discovered that somebody had set up a Facebook profile in his name. The profile contained a mixture of true and false private material including his photograph, date of birth, relationship status, purported sexual preferences, and his political and religious views. A group had also been created in his name called “Has Matthew Firsht Lied to You?” This group made false and defamatory allegations concerning his ability and that of his company to pay their debts.

Disclosing Information

Facebook Inc. removed the profile at Mr Firsht’s request and he then obtained a Norwich Pharmacal Order disclosing the registration data provided by the creator of the offending material. A Norwich Pharmacal Order is a means of obtaining disclosure against a third party who has been caught up, sometimes innocently, in wrongdoing. These orders have recently become popular as a means of identifying anonymous posters on the internet. Although a person posting defamatory material will often hide their identity, it is likely that they will have registered at some point, providing personal details, such as name and address. If a wrongdoing has been committed and the only way to trace the offender is through personal details held by the website, a court would usually order the disclosure of these personal details.

The evidence in this case indicated that the IP address used to create the profile and the group page was the Defendant’s.

The case shows that it is possible for a claimant to identify the author of internet posts to an extent that many people may not be aware of. In this case, Mr Firsht was able to identify the origin of the offending material down to the very specific times the material was posted and the specific flat in which it was created. Fortunately, the publicity received by this case should help to change the perception that the internet is completely unregulated and that offences occurring on-line will go un-checked.

Police powers to gather phone and email data.

2008-10-16T18:49:38+01:00

The Government hasn't exactly had the best record of late when it comes to the way in which it handles personal data.

It was in November 2007 that the Chancellor Alastair Darling revealed that two unencrypted CD's containing the personal details of 25 million child benefit claimants and their parents had gone missing. Only a month later the Transport Secretary Ruth Kelly reported that the details of 3 million learner drivers were lost when the hard drive on which they were recorded was misplaced in Iowa. In the same month the personal details of thousand of benefit claimants were found on a CD in the home of a former contractor to the Department of Work and Pensions and just three days later, the Government lost the names, dates of birth and national insurance numbers of 45,000 people claiming benefits in West Yorkshire.

In fact research shows that in 2007 a record 37 million items of personal data went missing and most of it was lost by the Government and the trend has continued in 2008. In June this year two NHS trusts lost unencrypted laptops which held records of 31,000 patients and just a month earlier, 38,000 were lost when the Isle of Wight Primary Care Trust posted the tape on which the information was held.

In light of this track record, it is somewhat surprising that the Home Secretary Jacqui Smith has announced plans to grant the Police and security services more powers to gather data from people's phone, email and web browsing. Consultation on the plans, which are expected to be included in the Communications Data Bill due to be included in the Queens Speech in November, will start in the New Year but reports have suggested that the Government wants single database to store the details of every UK phone call and email sent.

So what recourse do individuals, whose personal data and details have been lost, currently have? Under the Data Protection Act 1998 (DPA) appropriate technical and organisational security measures must be taken to prevent unauthorised or unlawful processing, accidental loss of or destruction to personal data. If this principle is breached, individuals are entitled to compensation from data controllers for damage caused. However, the courts have made it clear that compensation will only be available where the individual if they have suffered damage by reason of a data controller's contravention of the DPA. Where no damage is caused, no compensation is payable.

The House of Lords has backed a proposed amendment to the criminal justice and immigration bill which would make it a criminal offence to "intentionally or recklessly disclose information" or "repeatedly and negligently" allow information to be disclosed. Whilst stronger privacy laws are to be welcomed, in the short term, individuals have only a limited course of action reliant upon them actually suffering damage in order to claim compensation.

GOOGLE REFUSES TO SUBMIT TO EUROPE’S DATA PROTECTION REGIME:

2008-10-06T16:27:55+01:00

The Article 29 Workers Party has stated recently that Google considers that the European law on data protection is not applicable to itself, even though Google has servers and establishments in . It also asserts that Google wishes to retain personal data of users beyond the 6 months period requested by the Article 29 Working Party, without any justification.

The dispute centres on records of user’s search queries. Google keeps these and uses them, it says, to improve the quality of search results, to fight fraud and to improve data security.

The Working Party has called for this information to be deleted after just 6 months, claiming keeping data for longer risked breaching data protection laws. The Working Party’s stance is that if personal data are stored, the retention period should be no longer than necessary for the specific purposes of the processing. The Party also recommended that Web users should be able to provide consent to the exploitation of their data- especially for profiling purposes.

The Chairman of the Working Party has also criticised Google for failing to improve its anonymisation mechanisms, which he described as ‘insufficient’. He said that Google considers that IP addresses are confidential data but not personal data which prevents granting certain rights to its users…He went on to accuse Google of failing to express a willingness to improve and clarify the methods that are used to gather the consent of its users.

Google’s response to Working Party:

On 8 September Google re-affirmed its wish to collaborate with European Data Protection authorities, stating that it would reduce its retention period from 18 to nine months. However, the Workers Party responded by saying that in substance Google refuses for the moment to submit to the European Protection data law.

Google has renounced one of its key arguments in favour of keeping the logs. Fleischer had previously claimed that the EU’s Data Retention Directive forced it to keep details for between 6 and 24 months. The Working Party said this was not the case because data retention laws only applied to telecom firms. Google agreed that search logs are outside the scope of the Data Retention Directive.

In July Google made another concession to privacy activists when it agreed to publish a link to its privacy policy on its front page after calls for regulators to do so.

These concessions were welcomed by the Working party last week.

Working Party’s Conclusion:

…despite some progress, significant work must still be carried out to guarantee the rights of internet users and to ensure the respect of their privacy…In this perspective, the Article 29 Working Party will lead hearings with Google to discuss the points of dissension.

ICO'S NEW INSPECTION POWERS

2008-09-24T12:37:40+01:00

Following a recent Data Sharing Review the Ministry of Justice has launched a consultation on proposed new inspection powers and funding arrangements for the Information Commissioner. The review concluded that the Information Commissioner's office requires stronger powers and sanctions to carry out its duties. Now there's a surprise!

Spore Copyright Saga

2008-09-24T11:47:10+01:00

Earlier this month, the video game maker Electronic Arts ("EA") released the much anticipated "Spore" video game in the UK, but was promptly attacked by thousands of Spore fans on Amazon.com who found that their private use of the game was substantially curtailed by EA's copyright restrictions in the game software.

"Spore" is a creation of Mr Will Wright, the designer of the successful "The Sims" video games. Spore's unique selling point is that it allows players to use tools to help the evolution of their creations from mere microscopic organisms to intelligent and social life forms which can then master their surroundings and travel through space, constantly evolving at every venture.

However, for many Spore enthusiasts, the nurture of that evolution was squashed by the Digital Rights Management system employed by EA which restricted the number of times the game could be installed on personal computers. An EA spokesman commented earlier this month that its system "works just like online music services that limit the number of machines on which you can play a song" and that system "is an effort to control piracy".

The current position in the saga is that EA has relaxed the copyright protection for Spore and the user restriction has been raised from three to five computers which EA believes ought to account for all legitimate uses. See the online BBC report earlier this week: EA also plans to allow five screen (or user) names per copy of the game in the future. These moves ought to now appease the avid Spore game player.

The Spore saga has certainly demonstrated the market considerations that a games manufacturer needs to take into account when balancing the need to combat piracy and protect copyright with the reasonable consumer's realistic expectations about the product.

The balance will no doubt be dictated by how far a games manufacturer can commercially exploit its product through copyright protection without drawing in complaints that would ultimately serve to damage the repute of the product.

No residual goodwill in MINIMAX trade mark

2008-09-22T16:37:14+01:00

Under a recent ruling in Minimax GmbH & Co KG v Chubb Fire Limited (Chubb), the High court has allowed an appeal from a hearing officer’s decision made in January 2008, and has rejected Chubb Fire Limited’s opposition to the registration of the word MINIMAX as a trade mark by Minimax GmbH & Co KG (Minimax).

Origins of the appeal:

In August 2003, Minimax applied to register the trade mark MINIMAX in class 1 for fire extinguishing agents and compositions, and class 9, for fire extinguishing and fire protection appliances. In January 2006, Chubb opposed this application under s.5(4)(a) of the TMA, which provides that ‘a trade mark shall not be registered if, or to the extent that its use in the

United Kingdom

is liable to be prevented – (a) by virtue of any rule of law (in particular the law of passing off). In January 2006 the hearing officer held that at the relevant date Chubb did have a good will and reputation in the word MINIMAX for fire extinguishers and their servicing and refurbishment, as well as for the servicing and refurbishment of hose reels.

Minimax appealed this decision, claiming that the hearing officer had applied incorrect principles in reaching the decision and had failed to take into consideration the decision made by a hearing officer in earlier proceedings. (These earlier proceedings relate to MINIMAX’s successful application in 2005 to revoke two trade marks for the words MINIMAX owned by Chubb on the basis of non-user under s.46(1)(b) of the TMA).

Ruling:

Judge Floyd J ruled in favour of Minimax’s appeal and rejected Chubb's opposition under s.5(4)(a). The following reasoning was applied:

When hearing an appeal for Trade Marks Registry, the court was conducting a review and not a re-hearing (REEF TM [2003] RPC 101)

It is possible for a party to have made no real use of a mark for a period of 5 years, but to have retained goodwill in the name sufficient to support a passing off action (Ad-Lib Club v Granville [1972] PRC 673 and Sutherland v V2 Music Limited [2002] EMLR 2)

In January 2006 the hearing officer was deemed incorrect to have treated Chubb’s evidence as demonstrating continued use of the MINIMAX trade mark, when all it had been doing was servicing and refilling existing MINIMAX extinguishers which had been returned to it. There was no supply to the public of any product marked MINIMAX.

Although there was some use up to 1999, from then until this application there was no evidence of use. Chubb’s argument that this case should be contrasted with cases such as Ad-lib as the business in MINIMAX fire extinguishers had taken place over many decades, was rejected.

The case demonstrates that there is nothing in principle to prevent a person bringing an opposition based on passing off under s.5 (4)(a) of the TMA, even though it has a ruling against it that it had not made genuine use of the trade mark under s.46(1)(b) of the TMA. The problem for Chubb was that they could not demonstrate any residual goodwill in the MINIMAX mark. It had simply been servicing and refilling MINIMAX extinguishers returned to it.

NODUS

2008-09-19T14:54:56+01:00

There was a fantastic turnout for the NODUS Event last night. Colin Bliss QC introduced the speakers for the evening who were Denise McFarlane, Douglas Campbell and Tom Hinchliffe, all of 3 New Square.

Denise McFarlane started off with an instructive presentation on the do's and don'ts of instructing Counsel. In essence the message was not to worry too much about doing things the 'wrong' way or the 'right' way but instead to keep it simple, organised, to ensure good lines of communication with Counsel and to always keep any marked copies that are returned to you by Counsel! Douglas Campbell was second on the podium and spoke on the 'Bolar' exemptions relating to the experimental use of patented products. Douglas surmised that you should obtain the advice of Counsel if you are seeking to rely on the exemption.

Tom Hinchliffe was next to speak and did so on the recent case of Actavis v Merck which dealt with the question of whether the Court of Appeal could decide against its previous judgement in BMS v Baker Norton by which it should be bound. The CA decided that it could and this was partly because the UK case law was in direct opposition to the EPO settled case law in this area. However, last minute referral to the EPO Enlarged Board was made which cast doubt over the EPO settled issues and as a result, the time for leave of appeal to the House of Lords was extended until after the Enlarged Board has delivered its decision.

The next event will be in December 08. More details will be posted nearer the time.

New IP guides for businesses trading abroad

2008-09-03T12:24:40+01:00

The UK Trade & Investment and the UK Intellectual Property Office are publishing a series of five guides aimed at British companies who are trading in major markets around the world. These guides are intended to explain where businesses are likely to face problems in obtaining, protecting and enforcing their intellectual property rights. We haven't been able to find a copy of the new guides on the UKIPO website but it may be worth giving them a call if you are intending to trade in Brazil, China, India, Korea or Vietnam.

China looks to strengthen intellectual property rights

2008-08-26T18:08:26+01:00

China has announced a new strategy that will see its intellectual property laws revised. This development will be closely watched to see if this affords foreign rights holders better methods of policing their rights in China. It is also a sign of the country's increasing confidence in its own new technology. China appears to be gearing up to re-position itself on the world's stage as an innovator of intellectual property rather than merely a major source of of poor quality infringements. Mind you, it will be interesting to see just how the Chinese Health Ministry intends to protect "the patents" of traditional Chinese medicine when the medicine in question must surely be un-patentable by virtue of the fact that it is traditional.

MYGAZINES INFRINGING COPYRIGHT

2008-08-21T12:03:22+01:00

Mygazines is a website that grants a surfer of the internet easy access to well-known magazines covering a wide range of subjects, which are normally only available for purchase on the high street. Users of the site can copy and download or simply read in their entirety high quality digital versions of the latest editions of US magazines such as People, The Economist or Men's Health. Can the owners of the copyrighted works do anything at all? Normally the answer is a clear yes given the clear infringement of copyright by the Mygazine website. However on this occasion jurisdictional issues complicate the position.

The website is registered in the Caribbean Island nation of Anguilla by a registrant ingeniously called "John Smith" and outside the jurisdiction of American copyright law. Potentially, the copyright owners can sue for damages in a US court because the content of the website is available over the internet to American nationals. However, a US court could not oblige Anguillan Mygazine officials to turn up as the defending party at court nor allow the copyright owners to collect any damages for any ruling which was made in the absence of those officials.

As US giants such as Time Warner (the owner of People and Sports Illustrated) and The Economist try their hardest to find a way of stopping Mr Smith and his rogue outfit, the copyright infringement continues. To infuriate these giants further, Mygazine has told the world that its business is bona fide and likened it to a doctor's waiting area, where the public can read magazines which they have not bought. This may be a perfectly valid argument in a parallel IP universe, but doesn’t really bear the same fruit in the real world.

NODUS EVENT

2008-08-19T18:19:44+01:00

The next NODUS event will be on 18th September at Freeth Cartwright's offices.

Our Guest speakers are from Intellectual Property Chambers 3 New Square.

Further details will be published shortly.

THE FIGHTBACK AGAINST INTERNET PIRACY CONTINUES AS PINBALL GAME RULING THREATENS TO OPEN THE FLOODGATES

2008-08-19T18:10:27+01:00

The Patents County Court has ruled that an individual must pay damages of around £6,000 and legal costs of £10,000 to media company Topware Interactive for placing its game (Dream Pinball 3D) on an internet sharing network thereby infringing Topware's copyright in the game. See the BBC's online report today about the ruling which potentially opens the floodgates for similar actions by media companies.

In a file-sharing network such as eMule and eDonkey, the file being shared is held on a member's computer. Those who want access to a particular form of media, be it a game, music item or video, can obtain bite sized chunks of it from everyone else who has it in the network.

The successful action by Topware against individuals shows that media companies are no longer turning a blind eye to internet pirates. The action also sounds a warning to the many individuals who have infringed Topware's and other media creator's copyrighted works over the internet and those who plan to do so.

The ruling is also topical. It comes at a time when the UK's top ISPs are cracking down on illegal downloads (see our blog entry of 24 July 2008) and when the government is expected to consult the music industry in an effort to oblige all ISPs to tackle music piracy. Slowly but surely the creator's of UK Media are fighting back against internet pirates.

POLICE CANNOT RETAIN OLD RECORDS OF MINOR CRIMINAL OFFENCES?

2008-08-04T15:37:18+01:00

Recently the BBC reported (http://news.bbc.co.uk/1/hi/uk/7520139.stm) that the police could be obliged to remove thousands of old criminal records of minor offences from the national database This report came after the Information Tribunal dismissed appeals from 5 police forces including Humberside and Greater Manchester and instead upheld the information commissioner's ruling that the holding of records for minor offences breached key principles of the Data Protection Act ("DPA").

The records that were at issue related to a caution and minor thefts such as theft by teenager of a 99p packet of meat in 1984. This information had floated to the surface when the individuals concerned were making job applications. Although not confirmed, it is likely that the minor convictions fell under the Rehabilitation of Offenders Act exceptions which allow an employer to request additional information on "spent" convictions when recruiting for certain professions such as a teacher or doctor.

The Information Tribunal confirmed that the DPA was explicit in saying that any personal data held must be relevant, up-to-date and not excessive. Clearly, the retention of information on the theft of a packet of meat almost 25 years ago was seen to be irrelevant today. The Information Tribunal's decision has the effect of opening the floodgates to applications from thousands of offenders who committed a minor crime when they were young.

These applications will be further fuelled from the fact that criminal records are currently allowed to remain on the police national computer for up to 100 years. Ian Redhead of the Association of Chief Police Officers expressed the disappointment of the police forces to the decision and commented that the decision could have far reaching consequences for the police service as a whole. Sensibly, Mr Redhead also commented that it was important that clear national guidelines are now put in place so that forces take a consistent approach to the retention of criminal records.

Although the ruling is sensible and, on the surface, a victory for those who struggle to get employment as a result of a minor blip on their life CV, Mr Redhead is perhaps rightly cautious. For example, whilst the ruling is satisfactory for offenders who have only committed only one minor offence in their life times, would it also extend to serial offenders who have committed minor crimes "x" years ago? Surely in this case, information of all of the crimes committed by a serial offender would still be relevant under the DPA. The position is not as clear-cut as it originally appears to be. KP

Brought to Book

2008-07-28T16:30:54+01:00

There was an interesting "zeitgeist-type" report on the BBC's news site the other day concerning a successful court action for damages against someone who maliciously created a false profile on Facebook. The article sets ot the main facts quite succinctly, but in essence someone was found to have created a false profile calculated to inflict damage on the target party. The court awarded the victim GBP22,000.

For me, the point here is that yet again, we have the courts applying mainstream law to activities in cyberspace. In other words, there are plenty of laws out there that can get you if you (a) behave as though the internet is a lawless frontier and (b) assume that as long as that's where you operate, you're immune. Not so.

Before we all get too excited though, there are a couple of caveats to be borne in mind (we're lawyers -what else would you expect?)

(1) The victim here appears to have possessed determination and funds in at least equal measure - according to te report, he seems to have needed plenty of both to track the culprit down and make his claim. Just how he did this is not yet clear.

(2) There is no information about what if any measures his attacker used to conceal his identity or otherwise cover his tracks - the report sounds a word of caution as to how difficult it could be for others to follow the injured party's example.

Still, let's not be too pessimistic - every victory of this type is significant.

CRACKDOWN ON ILLEGAL NET DOWNLOADS

2008-07-24T11:43:51+01:00

BBC news has today reported that six of the UK's largest Internet Service Providers ("ISPs") including BT, Virgin and Orange have agreed a strategy with the music industry to significantly curb on-line music piracy.

The ISPs in question have signed a memorandum of understanding drawn up by the government. The memorandum obliges ISPs to educate their customers so that no customer is oblivious to or simply avoids the fact that it is illegal to share copyrighted music without a valid defence. Internet pirates in the UK have turned a blind eye to this fact since ever since the advent of the internet and have carried out infringing activities without the fear of being caught. A position which is contrary to that in the USA, where the thousands of claims made against alleged music sharers have had the effect of deterring would-be pirates.

In February this year The Times reported that an estimated six million broadband users were downloading files illegally every year in the UK. An activity that cost music and film companies billions of pounds in lost revenue annually. The memorandum is, at the very least, a start of a long process which will hopefully see the number of illegal downloads decrease and in-turn reassure and safeguard the integrity of the UK's creative industries. Already, Virgin and BT have sent letters to persistent music pirates flagged by the BPI, (the trade association for the UK record industry). Thousands more letters will be sent in the coming weeks and months to pirates.

The BBC announcement comes at a time when the government is also expected to consult with the music industry and other relevant bodies in an effort to oblige all ISPs to tackle music piracy.

Bratz success caught by barbie-d wire

2008-07-18T17:28:18+01:00

Mattel Inc, the creators of the Barbie doll enterprise and the world's largest toy maker, has won its copyright infringement claim against MGA Entertainment Inc, the marketers of the Bratz line of dolls since 2001. CNN has reported the ruling today, which could potentially net Mattel a windfall when damages are decided separately by a jury. See http://edition.cnn.com/2008/BUSINESS/07/18/barbie.bratz.ap/index.html

Mattel brought its infringement claim against MGA in a US District Court when it had gathered sufficient evidence that the Bratz dolls concept was coined by a former employee when he was working for Mattel. That employee had left Mattel in or around 2000 for MGA. Shortly after his move, MGA had started marketing the Bratz doll and soon created a Bratz empire worth over £500 million dollars a year.

MGA had argued that the employee had created the concept during a period of time when he was not working for Mattel. However, this argument fell by way side and Mattel convinced a federal jury that the employee conceived the Bratz idea whilst in its employ.

Since the arrival and success of the Bratz empire, Barbie merchandise had suffered a noticeable slide in sales. Following this huge result in favour of Mattel, that slide will eventually be corrected unless MGA are successful in any appeal.

This case is yet another example of a company moving full steam head in bringing a product to market without taking great care to ensure that its new designer isn't using confidential information belonging to his previous employer in his new role. If that company goes on to achieve tremendous success with the product, its fall from grace is dramatic when the real creator comes forward to claim what rightfully belongs to it.

We have noted a marked increase in breach of confidentiality cases over the last few months.This seems to tie in with the difficult trading conditions. In some instances the new employer is completely innocent but in an alarmingly high number of cases individuals have been employed so that the new employer can acquire that confidential information to use to its own advantage. As the market becomes more difficult we anticipate that this type of case will become even more common as businesses struggle to maintain market position.

Life imitates art as cybercrime mastermind wooed by forces of good. (Now I really AM worried.)

2008-07-16T13:45:59+01:00

This piece on the Guardian's site is about the teenage cybercrime overlord in New Zealand who has escaped a jail term (and pretty much any real punishment). it seems that the local law enforcement agencies know when they're outclassed, and are interested in recruiting him as a cybercrime consultant and trainer (in the good way).

As a devotee of quality film, I was reminded of the plot of The Core (2003), in which the US Government enlists a hacker / cyber crime genius to control news flow on the internet while the film's heroes secretly battle to stave off the imminent end of the world.

Is there something we should be told?

Billion dollar litigation versus privacy

2008-07-15T18:07:26+01:00

Since March 2007, Google has been involved in a US legal battle worth around 1 billion dollars with Viacom, the owners of Paramount Pictures and MTV over an alleged infringement of Viacom's copyright.

Viacom has alleged that YouTube (purchased by Google in 2006) housed approximately 160K unauthorised clips of its programmes, which had been viewed on over 1.5 billion occasions by users.

We welcome this correction by the US Court. The dazzling lights of billion dollar litigation should not blind the judiciary from the privacy laws enshrined in US legislation and indeed the European Convention of Human Rights in the EU.

A US Court order had originally ordered Google to disclose the personal details of millions of YouTube users in order for Viacom to effectively prepare its case against Google. However, after hearing the wrath of privacy activists who contended that the original order threatened to deeply expose private information, the US Court has varied its original order. The BBC has today reported that the new order obliges Google to still hand over the data logs to Viacom but without disclosing the user's personal details.

Unless settled, the case will come to trial next year or in 2010.

You vote - we sell!

2008-07-11T19:05:01+01:00

The BBC has today reported that a government backed review lead by Information Commissioner Richard Thomas and Wellcome Trust director Dr Mark Walport has condemned the recent practice of local authorities selling voters' details to marketing companies. See http://news.bbc.co.uk/1/hi/uk_politics/7500826.stm

In particular the report indicated that the public ought to have a right to know which companies possess their personal details. The report also criticised the public and private sectors in general by indicating that the act of data-sharing was "shrouded in confusion," with the public oblivious to how their personal information was being used by companies.

Councils have hit back. They are in fact "more than happy" to cease selling edited details on the electoral roll because of administrative hassle and cost involved. In fact Local Government Association spokesman Edward Welsh has been reported to say that Councils have only carried out this activity because they were forced to by the government in 2002 due to changed rules.

The BBC article which directly relates to the public's privacy rights comes just days after recent media reports of web giant Google planning to extend its Google Earth product so that it covers views of

Britain

's streets, potentially warts and all. Whilst the government backed review focussing on breaches of privacy rights by Councils is commendable, will the government show any interest in potential privacy breaches by the world's information gateway?

Is showing a film at a garden/yard party a public performance?

2008-07-07T18:56:25+01:00

I was watching something on Channel 4 the other day, which couldn't have been that inspiring because I was roused to consciousness by the advert break. In particular, it was a promotional blurb by Channel 4 asking its viewers to host a screening of a film in their back yard and send in photos of the event. The winner would win a "Summer Screen VIP package".

This got me thinking. If someone invites a load of their friends around to watch a movie in their garden - lets say 12 people, does this amount to a public performance? Channel 4 must have taken advice on that I thought, so I went to their site to dig a little deeper. Details of the competition can be found at http://www.channel4.com/film/newsfeatures/microsites/S/summer_screen_2008/competition.html

Channel 4 have very thoughtfully pointed out on the main page that when you take a picture of your party you must not include the movie you are showing in that photo - presumably they are worried about copyright infringement here. However the advice given on the "Backyard Screening Guidelines" for the competition entrants is as follows;

"Keep it Legal - Don’t sell tickets to your movie night. Limit the invites to a few acquaintances and banish all thoughts of turning your film session into a cash machine. Make sure you put on a good spread for your friends in your own backyard, not in a public place."

Now that is sensible, but I think misleading advice. There is no requirement for commercial gain in copyright infringement and if you follow the strict letter of the law projecting a film onto a sheet in your back garden for the benefit of a gaggle of your friends is likely to be an infringement - particularly given that most town gardens are overlooked and therefore not actually private spaces.

I doubt that anyone is going to find themselves on the end of an infringement action, particularly given Channel 4's "don't include the movie in the photo" rule, but it's an interesting thought.

Our Top Tip = If you are intending to host a screening in your back yard, why not make your own movie and screen that!

LVMH 1 - eBay 0

2008-06-30T18:44:58+01:00

LVMH, the luxury goods group has secured a judgment against eBay for failing to stop the on-line auctioning of goods that infringe LVMH's intellectual property rights.The French court ordered eBay to pay €40m to LVMH. The brands involved include Dior, Givenchy and Louis Vuitton. This is the second French judgment against e-bay this month with the owners of the Hermes brand successfully bringing an action against eBay and the actual seller of fake Hermes handbags.

One widely held view is that if eBay doesn't lose its wild west frontier image soon it could find itself prevented from listing any major brand name and as a result losing its attraction for all those bargain hunters who target branded luxury goods. But what can it do? It can ask its sellers to confirm that the goods offered for sale are legitimate. It can (and does) have a policy to deal with allegedly infringing goods and in my experience it is fairly good at removing goods quickly when a complaint is raised. The problem is how on earth can e-Bay tell if an article offered for sale in one of its auctions is the real McCoy?

eBay are now seeking leave to appeal against this latest judgment claiming that today's ruling was "an attempt by LVMH to protect uncompetitive practices at the expense of consumer choice and the livelihood of law-abiding sellers that eBay empowers everyday". Your gut reaction might be "that is all very well but what about the law abiding customers who think that they have a genuine bargain, the individuals burnt by fake perfumes or disappointed by shoddy copies of luxury branded goods? eBay may be disinclined to bring in tighter supervision of its on-line auctions but it may be putting off the inevitable

The idea that entities like eBay should actively police their domains for infringement of third party rights provides fuel for the argument that the Internet should become highly regulated - possibly to the extent that user anonymity (there are many legitimate reasons for anonymity on the Internet) becomes compromised. Is this really somewhere we want to go?

Ruthless? Moi?

2008-05-27T12:27:05+01:00

I was drawn to a piece on the BBC website on Saturday reporting that web users are becoming more "ruthless and selfish" when going online. What's this - are we hogging more than our allotted share of (largely illusory) bandwidth? Are we snaring unfriendly sites into consumer-run botnets? Sadly no.

What passes for user ruthlessness and selfishness in the eyes of the "usability guru" behind the research turns out to be such outrageous webuser behaviour as:

"ignoring efforts to make them linger" at a given site (ooooh)
"being suspicious of promotions designed to hold their attention" (aaaah) and even...
"wanting sites to get to the point" (gasp).

In short, people are said to be "much less patient when they go online". Hmmmm.

Can I suggest a change of vocabulary? Ruthlessness and selfishness were thought to be bad things when I was growing up, and I would like to offer a far more positive view of these alleged vices in the context of Joe & Jane Q Public's use of the web.

If we accept the web as a maturing institution, and given that so many homes in the UK now have broadband, we should surely applaud signs that users are now more "empowered" (I hate that word, but you know what I mean) and less tolerant of clumsy devices designed to manipulate their behaviour. When we walk into a shop, select an item and go to the till, we don't expect the store chain's marketing team to take us aside and try and sell us something else. We want to buy, pay and leave - end of story.

Why not on the web? People now use the web for more and more day to day transactions, and simply expect to be treated as adults with other things to do. People have now sampled enough sites to be able to compare good and bad, and so will no longer tolerate their precious time being wasted. They shun sites that try to do so. People are also highly sensitive to cyber crime, and now seek to limit their exposure wherever they can. And another ting - if (like me) you live further away from a UK telephone exchange than you can throw a modem, you also want to get the job done during that precious window when your internet connection is still up.

This may be seen as a bad thing by the site proprietors and their men in ponytails, but it isn't - it's just a once-wild environment going mainstream. So get used to it you wild Web 2.0 cowpokes - the railroad's come to town and and it's time to behave like the "results-driven customer-centric" businesses you claim to be.

Actavis result

2008-05-23T15:20:03+01:00

The Court of Appeal has now reached its decision in Actavis UK v Merck Co, Inc.

By way of background, Merck is the proprietor of a number of patents related to a drug called Finasteride. That drug is the active pharmaceutical ingredient in a product called Propecia, a tablet form of Finasteride for the treatment of male pattern balding. Finasteride blocks the activity of an enzyme which causes the balding.

Actavis sought to revoke the patent under which Propecia was marketed. At the priority date of the Propecia patent (October 1993), Merck was already in the process marketing a product called Proscar, a tablet form of Finasteride for the treatment of prostate enlargement under an earlier patent. The specification of this patent disclosed the treatment of male pattern balding with Finasteride, but at a much larger dosage than that claimed in the Propecia patent.

Actavis argued that the claims in the Propecia patent were invalid because they were A) a method of treatment; and B) obvious in light of prior art. In relation to the first ground of invalidity, Actavis submitted that for a Swiss-style claim to be valid, it needed to relate directly to the use of a substance or composition for the manufacture of a medicament for a specified new and inventive therapeutic application. Actavis argued that Bristol-Myers Squibb was authority for the proposition that a new dosing regime for the treatment of a previously disclosed disorder would not be novel. The EPC agreed with Actavis on lack of novelty and made an order for the revocation of the patent. It did not however hold that the claims were obvious.

Merck appealed against the findings of lack of novelty and unpatentability. Actavis cross-appealed against the finding of non-obviousness.

The Court of Appeal held that Swiss-type claims were allowed under the European Patent Convention 1973 (art. 52(4)) and settled EPO case law where the novelty was conferred by a new dosing regime. It was further held that Bristol Myers Squibb did not contain a clear ratio that a Swiss-type claim lacked novelty if the only difference between it and the prior art was a new dosage regime for a known medical condition. The EPC had erred in holding that the claim lacked novelty and was for a method of treatment. The Court also said that even if Bristol Myers Squibb was a binding precedent, it was not bound to follow it if it was inconsistent with settled EPO law.

Actavis was not successful in its cross-appeal and the order for the revocation of the patent was rescinded.

Do Sharepoint-created websites breach the Disability Discrimination Act?

2008-05-23T10:36:16+01:00

Bruce Lawson, a web accessibility expert, certainly thinks so. Lawson writes on the subject for the May 2008 edition of the Internet Newsletter for Lawyers. INfL is a subscription based publication (online and offline), so you'll need to be a member to read the full article.

Lawson's argument about Sharepoint websites breaching the Disability Discrimination Act (DDA) breach is based on testing which indicates that such websites breach a number of the Priority 2 criteria of the Web Content Accesibiity Guidelines 1.0 (WCAG). The link between WCAG compliance and the DDA is one that hasn't been discussed by the UK court. Many UK IT lawyers are therefore likely to find Lawson's argument logical, but not necessarily persuasive simply because of lack of case law. In other jurisdictions, the law is more settled because of Court rulings (e.g. see our report on the Californian ruling on Target).

You can read more about the DDA and website accessibility in our IMPACT article "Making websites accessible to all".

Another GPL enforcement success as Skype accepts German Court ruling

2008-05-09T10:13:39+01:00

News is emerging that Skype has dropped its effort in the German Courts to challenge the validity of GPL2, still the most commonly used free software licence despite the launch last year of GPL3.

The case is to do with the use of GPL2 licensed software that Skype used in its Skype-phones, and Skype's failure to supply the source code to that software with that phone, as required by GPL2. As we reported in August 2007, the German Courts ruled that by failing to comply with this requirement Skype had breached the licence terms (see The Register for more details). Skype then took the case to the Appeal Court.

Based on reports on Groklaw and Welte's blog, the German Appeal Court gave Skype's arguments as to invalidity and breaches of anti-trust (i.e. competition) law very short shrift. On the issue of GPL2's requirement to publish/make available source code, Welte reports that one judge made a comment along the following lines:

"If a publisher wants to publish a book of an author that wants his book only to be published in a green envelope, then that might seem odd to you, but still you will have to do it as long as you want to publish the book and have no other agreement in place".

The case was brought by Harald Welte, the world's GPL-compliance policeman, who has been the force behind other successful cases where GPL2 has been enforced in the German Courts. Whilst the individual cases themselves may seem trivial, these decisions have really helped reassure FOSS-using organisations and their clients that the licences are sound.

Given that the case ended because Skype decided to end its appeal, rather than because the Appeal Court gave a ruling, there will be no official decision for us lawyers to get stuck into. Hopefully though, a definitive record of the comments of various judges on GPL2 during the appeal will appear.