Internet and IP Law Roundup http://www.mikkibarry.com/blog/ Farkas and Barry's Internet and Intellectual Property Law Newsletter 2009-09-22T23:24:09-05:00 ECJ Advocate General: Google Sale of Adwords Not Per Se Unlawful http://www.mikkibarry.com/blog/archives/004227.html

The Advocate General of the European court of Jsutice has released his opinion in Google France v LVMH, regarding Google's ability to sell keywords reflecting trademarks, in the EC. The Advocate General's opinion strongly determines the actual decision of the ECJ. The AG's view is that the sale of keywords is not per se unlawful From the ECJ press release:

In his Opinion delivered today, Advocate General Poiares Maduro suggests that Google has not committed a trade mark infringement by allowing advertisers to select, in AdWords, keywords corresponding to trade marks. He highlights that the use of the trade marks is limited to the selection of keywords which is internal to AdWords and concerns only Google and the advertisers. When selecting keywords, there is thus no product or service sold to the general public. Such a use cannot therefore be considered as being a use made in relation to goods or services identical or similar to those covered by the trade marks. Similarly, advertisers themselves do not commit a trade mark infringement by selecting in Adwords keywords corresponding to trade marks.


By contrast, the Advocate General finds that Google, by displaying ads in response to keywords corresponding to trade marks, establishes a link between those keywords and the sites advertised which sell products identical or similar to those covered by the trade marks. The very same link is established between keywords which correspond to trade marks, and the sites displayed as natural results.


However, in the view of the Advocate General, such a link also does not constitute a trade mark infringement. In effect, the mere display of relevant sites in response to keywords is not enough to establish a risk of confusion on the part of consumers as to the origin of goods or services. Internet users are aware that not only the site of the trade mark owner will appear as a result of a search in Google's search engine and sometimes they may not even be looking for that site. These users will only make an assessment as to the origin of the goods or services advertised on the basis of the content of the ad and by visiting the advertised sites; no assessment will be based solely on the fact that the ads are displayed following the entry of keywords corresponding to trade marks.

IPKat analysis here.

[From ECJ Advocate General: Google Sale of Adwords Not Per Se Unlawful] ]]> mikki 2009-09-22T23:24:09-05:00 FCC to Propose Net Neutrality Rules http://www.mikkibarry.com/blog/archives/004221.html FCC to Propose Net Neutrality Rules:


New FCC Chairman Julius Genachowski threw down the network neutrality gauntlet in a speech today [PDF] [HTML] at the Brookings Institution, announcing his intention to start a formal process that would result in adoption of binding regulations. [There is good news and blog coverage from AP, Wired, and Washington Post.] His proposal would turn the FCC’s existing advisory guidelines, known somewhat ridiculously as the “Four Freedoms” (begging unflattering comparison with a much more significant quartet) into rules governed by six principles. Quick statements of support from two other commissioners, longtime net neutrality supporter Michael Copps and new member Mignon Clyburn, demonstrated that Genachowski has the three out of five votes he needs to prevail.


The two additional principles are extremely important aspects of the plan. First, a “nondiscrimination” principle would embody the heart of the concerns expressed by activists for free speech and end-to-end openness who warned that providers would begin to offer preferential treatment to some content based on the identity of the sender, either to extract fees for high-speed delivery or to block competition. Second, a “transparency” principle addresses the concern I’ve always expressed: consumers and regulators can’t find out about ISPs’ traffic-shaping. As if the formal rule and the new principles weren’t enough, Genachowski also said he would apply the new regime to wireless as well as broadband carriers.


This will be a major fight, probably the most significant battle we have seen within the federal government over the structure of the internet.


A few other observations after the jump:


Language: Genachowski appears to avoid the language of “network neutrality.” He prefers to talk about a “free and open internet.” I don’t think it means much substantively, but it suggests he is thinking carefully about how to present these complex ideas to the wider public.


Characterizing Supporters: The story was leaked in advance to the New York Times, Washington Post, and Wall Street Journal, which all run stories over the weekend. I could not help but notice that the Journal cast the entire debate in terms of telecoms (like AT&T or Verizon) against content providers (like Google or Amazon), making no mention whatsoever of the grass roots citizen activism on the issue. The Times, meanwhile, did just the opposite, painting the dispute only as a corporate vs. consumer one without ever noting the interest of big content providers in getting federal regulation of internet access. Both portraits are grossly inaccurate, of course.


The Need for Action: Genachowski strongly refuted the argument often made by telecoms that there are not serious access problems (yet) so action on network neutrality is premature. He said:


Saying nothing — and doing nothing — would impose its own form of unacceptable cost. It would deprive innovators and investors of confidence that the free and open Internet we depend upon today will still be here tomorrow. It would deny the benefits of predictable rules of the road to all players in the Internet ecosystem. And it would be a dangerous retreat from the core principle of openness — the freedom to innovate without permission — that has been a hallmark of the Internet since its inception, and has made it so stunningly successful as a platform for innovation, opportunity, and prosperity.


Details, details: Boy oh boy is the devil in the details on this one! There are so many questions about implementation. For example, under the plan the FCC would evaluate cases under the nondiscrimination principle on a case-by-case basis, so we may not know precisely what’s allowed for a long time to come. Also, there would continue to be “reasonable” exceptions to allow for network management, but how much scope would wireless broadband providers have to constrain bandwidth-hogging applications, especially at peak times? And Eric Goldman just tweeted about the tension between network neutrality and Section 230 immunity. And those are just the first ones that come to mind. This is going to be a doozy…



]]> mikki 2009-09-21T15:43:41-05:00 Appeals Court Reverses "Remote DVR" Decision http://www.mikkibarry.com/blog/archives/004196.html Appeals Court Reverses "Remote DVR" Decision:


The Second Circuit Court of Appeals today reversed a lower court decision that, as CDT and a number of others argued in a 2007 amicus brief, had the potential to chill innovation in products that use the Internet to provide storage and computing functions from remote locations. The lower court ruling had blocked Cablevision from rolling out a digital video recorder (DVR) system that stores recorded television programs on remote servers instead of in set top devices in the customers' homes. CDT applauds today's decision, which finds that providing such a remote DVR does not constitute direct copyright infringement. CDT also welcomes the court's finding that transitory data held in buffers for a mere 1.2 seconds do not constitute "copies" for purposes of the Copyright Act.

]]> Copyright mikki 2008-09-06T23:28:17-05:00 Comcast Sues FCC, Says Net Neutrality Order Legally Inappropriate http://www.mikkibarry.com/blog/archives/004194.html Comcast Sues FCC, Says Net Neutrality Order Legally Inappropriate:


Comcast has filed suit against the Federal Communications Commission (FCC) today in order to block the agency's decision to sanction Comcast for blocking certain Internet traffic.

Comcast has released the following statement attributed to David L. Cohen, Executive Vice President of Comcast Corporation:

"Although we are seeking review and reversal of the Commission's network management order in federal court, we intend to comply fully with the requirements established in that order, which essentially codify the voluntary commitments that we have already announced, and to continue to act in accord with the Commission's Internet Policy Statement. Thus, we intend to make the required filings and disclosures, and we will follow through on our longstanding commitment to transition to protocol-agnostic network congestion management practices by the end of this year. We also remain committed to bringing our customers a superior Internet experience.

We filed this appeal in order to protect our legal rights and to challenge the basis on which the Commission found that Comcast violated federal policy in the absence of pre-existing legally enforceable standards or rules. We continue to recognize that the Commission has jurisdiction over Internet service providers and may regulate them in appropriate circumstances and in accordance with appropriate procedures. However, we are compelled to appeal because we strongly believe that, in this particular case, the Commission's action was legally inappropriate and its findings were not justified by the record."

The formal petition can be seen here [PDF].

Update 9/4/2008: Statement of Gigi B. Sohn, president and co-founder of Public Knowledge: "We expected Comcast would appeal the Commission's order. The company opposed it every step of the way, even as they failed to disclose their throttling of Internet traffic. We believe the Commission will prevail and the rights of Internet users will be protected."

Update 9/4/2008: Martin responds to Comcast lawsuit: we still want answers

Elsewhere: BroadbandReports, GigaOm, Bits NYT

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More under: Access Providers, Broadband, Law, Net Neutrality, P2P, Policy & Regulation


]]> mikki 2008-09-06T23:12:55-05:00 Copyright content providers lose control of a DVR market to cable companies. http://www.mikkibarry.com/blog/archives/004190.html Copyright content providers lose control of a DVR market to cable companies.:

Who should derive revenue from remote DVR systems?  According to a panel of the Second Circuit Court of Appeals Cartoons case, the revenue should not go to the content providers.  This decision, grounded in three very narrow interpretations of the Copyright Act, works a shift of potentially significant revenue away from content providers.  Hopefully, it will be challenged and reversed on rehearing.

The case seemed simple for the content providers, but with judicial panel sympathetic to the other side, it became what is a potential nightmare for copyright owners in digital environments.

 

            A recurring issue today in court is who control or has an advantage in the newly emerging digital and elated markets.  Are technologists like Google in control with a right to use any content any time without permission, or do we still value the content creators?   This is not a philosophical issue and the combatants are not professors or mavericks.  They are large companies with billions of dollars at stake.  This is the era of the information wars.

 

            In the Cartoons case, Cablevision implemented a remote DVR system, allowing customers to select, store, and later play cable broadcasts.  In the system, when cable programs are received by Cablevision, they are routed through a buffer (buffer 1) and copied briefly while software checks if any customer had requested copying of the program for later replay.  If there was a request, the program would be copied into a server (buffer 2) and held for later viewing by the customer.  When the customer later desired to watch the program, the DVR system delivered a performance to the customer’s home video.  Variations of this system are widespread in the cable market and are a robust competitor to home recording systems.

 

            Cablevision did not ask for licenses from the content (program) providers for copying their programs or publicly performing them at times other than the original transmission.  It simply implemented the system and charged customers who desired to use it. 

           

            The Second Circuit concluded that this was fine – a major corporation (a cable company) could reuse another company’s copyrighted product without permission or payment.  This was a complicated decision, but fundamentally, a choice by the panel to turn potentially billions of dollars away from the creative parts of the industry to those who copy and retransmit.  It was a wrong decision.

 

            First, the panel held that copying was not copying if the copied image lasted for only a second or two.  So, the entire line of cases started in the Ninth Circuit’s MAI decision remains intact, but now seems to become a question of …..   I do not know what. 

 

            Second, the full content was copied into buffer 2 by Cablevision’s system.  But, no, cablevision who charged for this service, did not make the copies – the customers did – at least if you believe the panel of he court!

 

            Strike 2.

 

            Strike 3 is when the court held that, when the customer who caused the copy to be made, eventually asked for it to be performed in the customer’s home – this was not a “public” performance.

 

            This may be among the worst appellate court decisions in copyright law history


]]> Intellectual Property mikki 2008-09-06T23:10:12-05:00 UDRP decision against 11 year old boy http://www.mikkibarry.com/blog/archives/004165.html Once upon a time in Narnia, a little Scots boy lost a battle with corporate lawyers … - The Scotsman:


AN 11-YEAR-OLD boy was last night ordered by a court to hand back his birthday present – a Narnia-based website address – after one of the biggest legal firms in the world said it belonged to its multi-millionaire client.
Comrie Saville-Smith, from Edinburgh, an avid fan of the CS Lewis novels, was given the domain name narnia.mobi as a gift by his parents after it became available online.

But yesterday the World Intellectual Property Organisation (WIPO) in Switzerland ruled in favour of New York-based law firm Baker & McKenzie, representing Lewis's estate, that the name belonged to its client.

Last night Gillian Saville-Smith, Comrie's mother and a writer, described the decision as a "scandalously one-sided appraisal of the evidence" and added: "We are shocked by the decision. We put up a spirited fight because we wanted to prove that you do not have to hand something over just because someone richer and more powerful tell you to do so."

The family's international legal battle began in April, when they received an unexpected and irate telephone call from the US lawyers demanding they hand over the domain name and threatening legal action.

The Saville-Smiths refused and rejected the offer of a refund for the cost of the site, then another offer asking them to set their own price for the address.

Mrs Saville-Smith and her husband, Richard, a charity adviser and accountant, had paid £70 for the domain name from the internet registration company Fasthosts, keeping it as a surprise for their son's 11th birthday to coincide with release of the film of the second Narnia book last month.

They then received a 128-page legal document before the case went before the WIPO.

Responding to yesterday's judgment, Mrs Saville-Smith continued: "This decision by a one-man panel, supposed to be impartial, allows a multi-million-dollar company to seize a domain name purchased entirely legitimately by ourselves which has not been used in any way improperly or illegally.

"We provided clear statements and evidence to prove we had not profited, nor sought to, from this domain name – yet these statements and evidence have simply been ignored.

"Our lawyer has presided over 80 World Intellectual Property Organisation panels. It is clear from the judgment that the panel had pre-decided to award the decision to the CS Lewis Company.

"There was absolutely no evidence of a 'bad faith' registration put forward by the CS Lewis Company's lawyer's, which was required by the WIPO rules to find against us.

"Justice has not been served, and instead the interests of corporate power and money have wrongly triumphed. 'Narnia' had great meaning before its huge commercialisation in recent years and this judgment effectively says money, not the truth, is all that matters now regarding CS Lewis's magnificent fictional kingdom – despite the values and spirituality that originally lay behind it."

The Saville-Smiths said they could not afford to continue the legal fight.

Stranger than fiction? How the tale unfolded

30 APRIL: Law firm Baker & McKenzie calls and demands that the Saville-Smiths hand over the domain name.

5 MAY: Mr Saville-Smith writes to firm: "You seek an amicable settlement, but in your first contact you threaten my wife with legal action."

8 MAY: Law firm e-mails: "Please advise whether you would be willing to transfer the domain name to CS Lewis Pte Ltd."

8 MAY: Mr Saville-Smith replies: "I am not infringing their trademark, so I see no reason why I should to accede to your request."

Later that day the law firm contacts the family, saying: "What would you consider a reasonable offer?"

9 MAY: Mr Saville-Smith writes back: "We don't want to sell the domain name, as it is a special present for a ten-year-old boy."

28 MAY: The family receives a copy of a 128-page legal complaint filed with the World Intellectual Property Organisation in Switzerland.


]]> mikki 2008-07-24T11:42:09-05:00 “Rethinking Trademark Fair Use” Now Posted http://www.mikkibarry.com/blog/archives/004156.html “Rethinking Trademark Fair Use” Now Posted:


My full-length article about the practical problems with trademark fair use (and possible reforms) is now available on SSRN. It will appear in the Iowa Law Review at the end of 2008. A shorter “prequel” was published earlier this year.


This is the abstract of the new paper, entitled Rethinking Trademark Fair Use:


The ever-expanding scope and strength of trademark rights has caused justifiable fears of a threat to free expression. Until now, however, concerned scholars generally focused on perfecting the substance of legal rules that balance free speech against other goals. This effort is misplaced because most cases raising these issues in recent years ended in judicial decisions that favored speech. The real danger arises from the procedural structure of trademark law’s various “fair use” doctrines, which generate excessive ambiguity and prolong litigation before ever reaching such positive outcomes. Resulting administrative costs discourage speakers from using trademarks expressively in the first place, creating a classic chilling effect. This Article is the first to analyze these problems with trademark fair use comprehensively and recommend pragmatic reform to address the problems. Instead of adding more bells and whistles to already complex law, we should craft simpler affirmative defenses that reduce uncertainty and allow for quick adjudication.


I’d welcome any and all comments, either here or off line!



]]> Trademark mikki 2008-07-17T16:04:44-05:00 Good News from Three Spam Cases in the U.S. http://www.mikkibarry.com/blog/archives/004155.html Good News from Three Spam Cases in the U.S.:


They say (whoever "they" are) that good things come in threes, and that certainly seems true for law enforcement against spammers this week. In New York, Adam Vitale was sentenced to 30 months in prison and ordered to pay $183,000 in restitution for a week of spamming AOL back in 2005... In Illinois, an FTC settlement requires Spear Systems and company executives Bruce Parker and Lisa Kimsey to give up $29,000, stop making "false or unsubstantiated claims about health benefits" of their products, and bars them from violating CAN-SPAM ever again... And finally, in Seattle, the Robert Soloway case continues... More...


]]> Internet Law mikki 2008-07-17T16:04:11-05:00 Legal Technology - 9th Circuit Rules on Text-Message Privacy http://www.mikkibarry.com/blog/archives/004147.html Legal Technology - 9th Circuit Rules on Text-Message Privacy:


Most employees know that their bosses are usually within their rights snooping on workers' e-mail, but text messaging has been in murkier territory.

A federal appeals court sought to clarify matters in a ruling last month by distinguishing between electronic communication that employers store on their servers, or pay someone to store, and communication that is contracted out to third parties.

Employers must have either a warrant or the employee's permission to see messages that are not stored by the employer or by someone the employer pays for storage, the court ruled in a landmark opinion issued on June 18 in the matter of Quon v. Arch Wireless, et al. (No. 07-55282, DC No. CV-03-00199-SGL).

The ruling, by Judge Kim McLane Wardlaw from the 9th U.S. Circuit Court of Appeals in San Francisco, is being hailed by digital privacy advocates, and could create new administrative hurdles for companies to clear before handing out wireless devices to employees.

Employers may now need to use more concrete language in their privacy policies, and make sure that they explicitly assert access to text-messages as well as e-mail to encompass communications that are not under their physical control. To spare lengthy court battles later, written agreements covering employees' work-issued cell phones, for example, probably should say employers have the right to see all e-mail and text messages that workers send with the devices.

Among other privacy advocates, Jeff Chester, founder and executive director for the Center for Digital Democracy, praised the ruling.

"Mobile privacy is increasingly a political and legal battleground -- it's a very confusing regulatory landscape, there are no clear rules in the crazy quilt of the mobile communications systems," Chester says.

The ruling limits all kinds of entities' access to consumers' communications, he says: "Preserving as much privacy for the mobile consumer, and limiting the ability of government and commercial entities to readily access your mobile information is important, and the court did the right thing here."

Corporate e-mail has typically been stored on a company's own servers or on server space it pays for, which employers control, according to federal law. Text messaging has typically been managed by outside providers.

The lower court had ruled that employers have access to text messages because they are stored by the outside contractors, but the 9th Circuit found that the storage was incidental. Greater privacy protections apply, the court said, because employers are paying only for messaging services.

It is not clear, however, how employers should now manage the relationship with an employee who splits the bill for a work-issued cell phone or other message device, a common arrangement. In that case, the employee might be reluctant to give his or her employer full access to text messages, since some are presumably personal.

"It's going to highlight for businesses the need to think through, 'what kind of information do they need? What kind of access do they need to have? And what kind of documentation do they need to have in place to get that access?'" says Joel Reidenberg, a professor at the Fordham University School of Law and an expert on information privacy law. "A ruling like this is going to force companies to be more nuanced and careful in their data management, and that's a good thing."

]]> Misc mikki 2008-07-15T11:43:44-05:00 How Well Does Software Work as a Service? http://www.mikkibarry.com/blog/archives/004136.html How Well Does Software Work as a Service?:


You might be tired of the phrase "think outside the box," but that's what Software as a Service does -- the "box" being your computer. Though many are leery of having their critical software served up over the Internet, Web 2.0 advances are making SaaS more practical, and desirable.

]]> Misc mikki 2008-07-02T00:19:57-05:00 ICANN Takes First Step to Becoming a Global Content Regulator http://www.mikkibarry.com/blog/archives/004130.html ICANN Takes First Step to Becoming a Global Content Regulator:


There has been wide coverage of ICANN's decision this week to adopt a new process for creating new global Top Level Domains (gTLDs). Publishing a clear, transparent and objective process is thought likely to result in a considerable expansion of gTLDs—although nobody really knows whether this means "quite a lot" or "many thousands”.
The decision endorses a 2007 report from GNSO Council, an ICANN structure that makes recommendations to the ICANN Board on gTLD policy.
Less attention has been given to one of the new tests ICANN will use when considering whether to approve a new gTLD, contained in GNSO's sixth recommendation:
Strings [meaning, new top level domain names] must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.
The report goes on to amplify on what it means by "generally accepted legal norms relating to morality and public order":
Examples of such principles of law include, but are not limited to, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Convention on the Elimination of All Forms of Racial Discrimination, intellectual property treaties administered by the World Intellectual Property Organisation (WIPO) and the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).
Quite why intellectual property is included as an issue of "morality and public order" alongside the Universal Declaration of Human Rights isn't explained, and probably owes more to the lobbying power of the American music and film industry associations than anything else. That aside, not everybody is comfortable with ICANN making decisions on "morality and public order".
ICANN Board member Wendy Seltzer speaking for the At-Large Community (ALAC), that represents ordinary end users, commented:
[ALAC] expressed concern that putting these criteria into the gTLD approval process, even as opportunities for objection, injects ICANN into the business of making morality and public order decisions, or injects that into ICANN's processes in a way that, as ALAC put it, debases the ICANN process. And at-large does not want to see ICANN put into the business of adjudicating or even delegating the adjudication of morality or public order or community support. And so we hope that in implementation, these criteria can be kept sufficiently narrow so that they are both administrable and understandable and so that they do not involve ICANN, the organization, in making, or allowing to be made, determinations about any claim to generally accepted morality principles.
ICANN Board member Professor Susan Crawford agreed, going on to say:
[N]either national governments acting as sovereigns nor intergovernmental organizations acting as representatives of governments should participate in management of Internet names and addresses.
[...]
This wasn't done out of enthusiasm for the free market alone. The idea was also to avoid having sovereigns use the Domain Name System for their own content, control, desires. To avoid having the Domain Name System used as a choke point for content. Recommendation 6, which is the morality and public order recommendation, represents quite a sea change in this approach, because the recommendation is that strings must not be contrary to generally acceptable legal norms relating to morality and public order that are recognized under international principles of law. That's the language of the recommendation.
Now, if this is broadly implemented, this recommendation would allow for any government to effectively veto a string that made it uncomfortable. Having a government veto strings is not allowing the private sector to lead. It's allowing sovereigns to censor.
In the formal discussions, these issues are mainly debated in the abstract, but two key examples are bandied about in private: .jihad (which even the anti-censorship USA seems keen to prohibit) and .nazi (which is an example dear to the hearts of some European governments with strict anti-Nazi laws).
Civil libertarians supporting Susan Crawford's line argue that if governments are able to pressure ICANN into prohibiting .jihad (which has perfectly non-violent meanings in Islam as well as the terrorist connotations it has recently acquired in the West), then can a prohibition on .falun-gong be far behind?
Traditionalists among the Internet technical community might be less impressed with the cry to protect freedom of expression in top level domains, arguing that domain names—let alone top level domain names—are intended as identifiers in an addressing scheme, not as a medium of expression at all. However, even on this analysis there is cause for concern about the "morality string criterion"
Is it possible for a short phrase such as would be valid as a top level domain name to constitute an incitement to violence, or other generally accepted breach of public order, in and of itself? Does it not depend on how the domain is used? Does the objection to .nazi lie not so much in its identification of content that might relate to Nazi ideology and in history, but that it might be used by people sympathetic to the ideology?
Whether or not it is possible for a domain to inherently infringe principles of morality and public order, doesn't such a rule invite ICANN to investigate how such a domain might be used in any case? Surely it is inconceivable that ICANN would not consider the likely use of a domain. Is such an invitation a good idea? Do we really think ICANN is well equipped to perform this role?
If we accept that ICANN should consider the likely use of a top level domain, and weigh that against principles of morality and public order—not to mention intellectual property law—before deciding whether such a domain should exist, why should it stop there? Why shouldn't ICANN require the registries of gTLDs (including .com) to do the same at the second level? ICANN can impose terms on such registries by contract; the only thing that restrains it is a view that this is not ICANN's proper role or purpose. If we accept the principle that ICANN can adjudicate globally "generally accepted legal norms relating to morality and public order", why not require gTLD registries to enforce these principles at the second level? And why stop with new domains: wouldn't actual proof of "infringing" use be even more damning than speculation about how a new domain might be used in the future?
The string criteria debate may attract less attention than the creation of new TLDs, and may not immediately affect as many people as the introduction of Internationalised Domain Names. Nonetheless, history may yet come to view this as the watershed moment when the world first acquired a global Internet content regulator.
This article was cross-posted from the LINX Public Affairs blog

]]> Internet Law mikki 2008-06-27T12:07:04-05:00 Federal court enforces Facebook trade secret settlement with ConnectU http://www.mikkibarry.com/blog/archives/004129.html Federal court enforces Facebook trade secret settlement with ConnectU:


[JURIST] A US District Court for the Northern District of California judge Wednesday granted a motion to enforce a previous settlement agreement between two social networking websites, Facebook and ConnectU. The ruling effectively ends the two companies' ongoing legal battle concerning ownership of source code forming the basis of Facebook, the popular social networking site. The two sides had agreed on a settlement in February, but ConnectU had sought to annul that agreement, arguing that Facebook had committed fraud in the procurement, material terms were missing, and the agreement did not reflect the parties' intentions. Judge Ware rejected ConnectU's arguments of unclear terms and fraud, writing:

]]> Internet Law mikki 2008-06-27T11:16:32-05:00 Judge Orders Legal Fees in RIAA v Andersen | Threat Level from Wired.com http://www.mikkibarry.com/blog/archives/004125.html Judge Orders Legal Fees in RIAA v Andersen | Threat Level from Wired.com:


A federal judge is awarding Tanya Andersen, who defeated the Recording Industry Association of America's file sharing lawsuit, $108,000 in legal fees to compensate for defending herself against the RIAA.
The award, made public Wedesday by U.S. District Judge James A. Redden of Oregon, marks the second time that a target of the RIAA who beat a lawsuit was awarded attorney's fees. In August, a federal judge ordered the RIAA to pay $68,685 in litigation costs to two Oklahoma women whose case was dismissed.
Whether RIAA defendants who successfully defend such suits are automatically entitled to legal fees is on appeal to the U.S. Supreme Court. The dispute is whether judges must award fees to a prevailing party under the Copyright Act.
Judge Redden ruled (.pdf) that RIAA's arguments against legal fees were "misplaced."
"An award of attorney's fees to the prevailing party are 'the rule rather than the exception' under the Copyright Act, and 'should be awarded routinely,'" Redden wrote.
The RIAA dropped the case against Andersen last year after concluding her hard drive didn't contain purloined music tracks. The RIAA initially claimed a Kazaa shared directory that linked to her internet-protocol address was unlawfully distributing thousands of songs.
In response to the lawsuit against her, Andersen has countersued the RIAA in a case seeking class-action status to represent what her attorneys say is thousands of persons wrongly sued by the RIAA. That case has been dismissed three times, and its fourth try is pending.
Andersen attorney Lory Lybeck requested $300,000 and the RIAA suggested $30,000 was more appropriate. The award is upwards of $190 a hour.
The RIAA has sued more than 20,000 people for copyright infringement

]]> Copyright mikki 2008-06-27T10:17:59-05:00 Brand Owners Express Concern Over Introduction of New Top-Level Domains http://www.mikkibarry.com/blog/archives/004124.html Brand Owners Express Concern Over Introduction of New Top-Level Domains:


Monika Ermert reporting on Intellectual Property Watch says: "Some think ICANN should have moved much faster to introduce new names in the Internet to join the likes of .com and .org. Others moan about the widespread trademark infringement they expect to occur when the private internet governance body introduces several long-awaited new top-level domains. But the prospect of news about the next round in extending the global domain name space has brought them all to ICANN's Paris meeting that might emerge as the largest in the organisation's history." The ICANN Board will decide on Thursday which Top-Level Domains will move and which ones will not.

]]> Internet Law mikki 2008-06-27T10:10:16-05:00 Canadian DMCA will criminalize emailing your kids' class photos to their grandparents http://www.mikkibarry.com/blog/archives/004118.html Canadian DMCA will criminalize emailing your kids' class photos to their grandparents:


Michael Geist continues his ongoing series on activities that will be illegal under Canada's new copyright act, the so-called Canadian DMCA (Bill C-61). Today, backing up DVDs and scanning school photos:

Diane, who is four years old, is a huge fan of the popular TV character Dora the Explorer. For her birthday, she received four Dora DVDs. Given Diane’s habit of scratching them, her dad has begun to create backup versions. That day, Diane brings home her kindergarten class photo, which was taken by a local photographer. Josee digitizes the photo and sends a copy to Diane’s grandmother.

If Industry Minister Jim Prentice’s Bill C-61 becomes law, all of these copying activities arguably violate the law.

Bill C-61 does not allow users to make backup copies of DVDs. The act of backing up the DVD is an infringement. Moreover, in order to make the backup copy, users must typically circumvent the copy-protection on the DVD, also an act of infringement.

For decades, Canadian copyright law has vested copyright in commissioned photographs – like school photographs – in the person who commissions the photo. Bill C-61 reverses that practice so that copyright now belongs to the photographer. (repeal of Section 13.2) Assuming the photograph came with an all rights reserved restriction, the act of distributing the digitized photo to Diane’s grandmother now violates the law. (Section 29.21 (1)(e))

I'm pretty sure that every Canadian reading Boing Boing knows about this law and what's wrong with it, and I hope you've all contacted your MPs. But the point of these posts is to help you communicate to your less tech-savvy friends about these issues. Did you email your grandmother a photo of your kids' kindergarten photos? Call her up and tell her that you won't be able to do it again with the grade one pics next year unless she calls up her MP and puts him on notice that he'd better oppose the CDMCA or lose her vote. Did your brother back up his DVDs to his laptop when he went away to university? Call him now and let him know that he'll be a criminal next year unless he calls and writes to his MP and lets her know what he thinks of Bill C-61.

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