It's been way to long

The title says it all.

IP Freely has been very busy for the last god knows how many months and has really neglected his blogging duties and slew of loyal followers.

In the meantime we have had some interesting law: the Advocate General's opinion on the Adwords cases in particular. IP Freely really isn't sure what he thinks about this particular one. Fine I don't see that Google are infringing anyone's trade marks after all there are many legitimate owners (or users) of the same mark, not to mention the stifling effect stopping Adwords would have on Google and thus technology as a whole. However the AG's opinion to me just doesn't read right he bangs on about the similarities with comparative advertising etc which simply are not relevant and dismisses the potential of protection under that defence that I can't think of the name of (the one that's like the hosting defence but not) which would appear to be most relevant. It is also a shame that he bottled the chance to also comment on whether the advertisers themselves were liable for trade mark infringement, although reading between the lines one would say that it seems likely.

IP Freely is particularly looking forward to the ECJ decision on the above and more importantly the ECJ (and I guess the AG's opinion) on the other Adwords references. As well as a p2p case actually making it to court and being properly defended so that some kind of precedent can be established.

One not so interesting area of law (that IP Freely is currently trying to master but doesn't know where to start) is the implementation of a further 550 sections of the Companies Act 2006.......... we should have just kept the old one!

Anyway so long for now but in true Hollywood style I'll be back!

All quiet

I must apologise, it has been ages since my last post. Basically the LPC (Distinction lovely!) and then starting a training contract as soon as I finished really got in the way of blogging.

However I am determined to get writing again so look out!

Stuff

Facebook are allowing users to chose user names for the first time i.e. the users URL will be http://www.facebook.com/ipfreely for example.

Which makes IP Freely think of........trade mark infringement! It's one of my favourite topics and one that Facebook have already prepared for with a pre-registration process allowing rights holders to list their trade marks and bar others from registering them as names. The catch? You have to already be a member to do so. Out-law have written more about it here.

Out-law also report that "Consumers think limitless domains will muddy internet waters", why people bother making such surveys I don't know.

************UPDATE*************

IP Freely is having considerable trouble in creating new posts at the moment hence the lack of recent posts (although I have also been very busy with other projects), as soon as Blogger lets me post you will hear from me!

Defamation at a glance

This article looks at the law of defamation, it's defences and possible remedies.

A defamatory statement is one which tends to lower the claimant in the estimation of right-thinking members of society generally (Sim v Stretch [1936] 2 ALL ER 1237 and can be split into two areas: libel (this is recorded defamatory material) and slander (spoken).

There are three elements which must be shown in order to bring a defamation claim:

- A defamatory statement;
- That identifies the claimant (note: this does not have to be by name, in fact a member of a group of people could bring a claim should they be identifiable);
- Publication to a third party

If you have been defamed you must bring your claim within one year of the statement being made(section s4(a) Limitation Act 1980). The Court does have a degree of discretion in applying the limitation period however they are usually reluctant to divert from it. Recent case law (Times Newspapers v UK (2009) has provided that every time an online article is accessed a fresh publication is made, therefore where a defamatory statement is made online the limitation period is potentially endless.

A reputable publisher / newspaper will contact you with any "risky" stories they plan to run about you prior to publication (although in most cases this will be a couple of days maximum) in doing so they are attempting to bring themselves within the scope of the Reynolds defence i.e. "responsible journalism". Where a publisher / newspaper have done so or you have found out about the article some other way prior to publication then you can consider applying to the Court for an interlocutory injunction (i.e. preventing the story being published). Such applications are more often than not turned down, the basic rule is that if the defendant plans to raise a defence at the full hearing then the Judge will allow the story to run provided that the defence has a "realistic prospect of success".

There are a number of defences:
- Justification i.e. the story was true
- Fair Comment (provided "the unmistakeable badge of comment" exists)
- Absolute / Qualified Privilege for example statements made in the course of parliamentary debate etc
- Qualified Privilege at common law i.e. the 'Reynolds' "responsible journalism" defence
- Responsibility for publication, quite simply "it wasn't me guv")
- Offer to make amends under sections 2-4 of the Defamation Act 1996

Where a claim is successful likely remedies include injunctions from further publication of the material, damages (although not as much as you would think!) or the publication of an apology.

Michael Owen over the hill?

England and Newcastle footballer Michael Owen has succeeded in his defamation claim against the Daily Express.

The striker has had an injury plagued career which reached an all time low with the relegation of his club Newcastle United to the Coca-Cola Championship. In the article the Daily Express claimed that he was on the verge of retiring from football because no Premier League clubs wanted to sign him. According to his solicitor: "These incredulous allegations are entirely without foundation and were obviously extremely distressing, hurtful and damaging to the claimant." .

These claims were headed by the following: "Unwanted Toon striker at a cross roads, Finished at 29?" and "Owen ready for sad finale". Owen's solicitor claimed that the timing of the publication (just before an important game) aggravated the player's distress and that the allegations were not put to Owen before publication.

Express Newspapers has agreed to pay an undisclosed sum of damages and Owen's legal costs, they have accepted that the allegations were unfounded and apologised for the distress, embarrassment ad offence caused.

A spokesman for Owen said: "Michael is delighted to have won his case and to have set the record straight."

Black Sabbath in trade mark dispute

Metal favourites Black Sabbath are involved in an internal trade mark dispute.

Lead singer Ozzy Osbourne (famous for among other things biting the head off a bat whilst on stage) is reportedly suing the band's guitarist Tony Iommi over the rights to the bands name. Iommi registered 'Black Sabbath' as a trade mark in the US in 2000 and claims that when Osbourne left the band in the 1980's he relinquished any rights he had in the band's name.

According to a statement issued by Osbourne, he asked Iommi to "do the right thing".

"Tony, I am so sorry it's had to get to this point by me having to take this action against you,".

"We've all worked too hard and long in our careers to allow you to sell merchandise that features all our faces, old Black Sabbath album covers and band logos, and then you tell us that you own the copyright."

Osbourne reportedly want's the original band members to share Black Sabbath's name equally: "I hope that by me taking this first step that it will ultimately end up that way." however at present it seems he is seeking 50% ownership.

Interestingly enough this dispute bears remarkable similarities to the case of Peter Byford v (1) Graham Oliver (2) Steven Dawson (2003) which related to the metal band Saxon. In this case the line-up of the band had been constantly changing and on leaving the band in 1985 and 1995 respectively Oliver and Dawson registered the name as a trade mark. It was held that the band was a partnership at will and as such all rights in the name of the band were owned by the members jointly, where a member left the band and was replaced then the name and goodwill belonged to the successive partnerships.

If the claim was brought in the UK then applying the Saxon case (presuming there is no band agreement) it would seem likely that the trade mark will be deemed to belong to the current band line up, which incidentally is back to the original 1968 line-up.

Football clubs kick off together

A number of England's top football clubs have combined in order to win a ground-breaking domain name dispute at the World Intellectual Property Organisation (WIPO).

Fulham, Liverpool, Manchester United, Tottenham Hotspur and West Ham joined forces to make a claim under the Uniform Domain Name Dispute Resolution Policy. The WIPO panel stated that "little (if any) substantive consideration has previously been given by a UDRP panel concerning the circumstances in which it might be appropriate to permit a consolidated complaint involving multiple complainants and multiple domain names against a single domain name registrant". The panel considered an earlier ruling: "In the National Dial A Word case the panel held that the consolidation of multiple complaints in a single complaint should be permitted if the complainants:
(i) have a common grievance against the respondent; and
(ii) it would be equitable and procedurally efficient to permit the consolidation of complaints,"

It went on: "With regard to the first limb of the test, to establish a common grievance against the respondent the panel in the National Dial A Word case held that multiple complainants must:
(i) have a common legal interest in the trade mark rights on which the complaint is based; or
(ii) be the target of common conduct by the respondent which has clearly affected their individual legal interests in a similar fashion."

The clubs were complaining over various domain names that were linked to websites selling tickets to their football matches for example official-liverpool-tickets.com. This was considered to fall under the second option above i.e. the clubs were the target of common conduct by the respondent which has clearly affected their individual legal interests in a similar fashion.

"The [football clubs] have established that [Domains By Proxy] has engaged in common conduct which has affected their legal rights in a similar fashion. Indications of such common conduct on the part of the Respondent include:
(i) the fact that the Disputed Domain Names share readily identifiable commonalities. When each of the [football clubs'] trade marks are disregarded for the purposes of comparison, the Disputed Domain Names contain the identical generic terms 'official' and 'tickets';
(ii) the fact that the Disputed Domain Names have all apparently been registered on the same day points to a clear pattern of registration;
(iii) the fact that the Disputed Domain Names apparently all resolve to an identical web site selling unauthorised Premier League tickets points to a clear pattern of use of all the Disputed Domain Names for the same purpose,"

It should be pointed out the Nominet (the body handling disputes over .uk domains) explicitly allows multiple claimants. It seems a sensible step forward for WIPO as cyber squatters etc tend to direct very similar activities at a number of victims and by banding together these victims can make substantial savings as to legal costs.

For more details of domain disputes please see: http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/5147-Cyber-Squatting.htm

The King of Pop in contract breach?

The King of Pop looks like he's in a spot of bother.

IP Freely was one of many doubters of Michael Jackson's 50 date run of shows at the O2 (albeit my doubts were of a physical health nature rather than a legal one). Music Week has now reported that the shows are the subject of a legal wrangle.

All Good Entertainment Inc claims to have signed a deal with the King of Pop's manager Frank DeLeo stating that Michael would not play a show before July 2010 when he is contracted to perform with his sister Janet (and his brothers but I don't know who they are) in Texas.

As you will not have missed Michael's run of shows at the O2 start this July (that's '09 for those of you not paying attention), All Good are claiming a breach of contract and having apparently attempted to negotiate with Michael they are reportedly considering a claim.

IP Freely would be interested to read Michael's management agreement as Frank DeLeo should as a general rule not have the right to sign such a deal onn Michael's behalf........

Facebook change AGAIN

Facebook, it seems to be all IP Freely writes about these days. But having logged onto his account this morning he noticed a rather interesting new application allowing him (and other users of course) to vote for the sites "governance" documents (EULA and privacy policy to you and me).

IP Freely has previously identified a number of widely known issues with Facebook's EULA and controversy surrounding their proposal to change it. Anyway here's the clauses of the proposed EULA that interests IP Freely:

2. Sharing Your Content and Information

You own all of the content and information you post on Facebook, and you can control how we share your content through your privacy and application settings. In order for us to use certain types of content and provide you with Facebook, you agree to the following:

2.1 For content that is covered by intellectual property rights, like photos and videos (“IP content”), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (“IP License”). This IP License ends when you delete your IP content or your account (except to the extent your content has been shared with others, and they have not deleted it).
2.2 When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
2.3 We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).

5. Protecting Other People’s Rights

We respect other people’s rights, and expect you to do the same.

5.1 You will not post content or take any action on Facebook that infringes someone else’s rights or otherwise violates the law.
5.2 We can remove any content you post on Facebook if we believe that it violates this Statement.
5.3 We will provide you with tools to help you protect your intellectual property rights. To learn more, visit our How to Report Claims of Intellectual Property Infringement page.
5.4 If we removed your content for infringing someone else’s copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal.
5.5 If you repeatedly infringe other people’s intellectual property rights, we will disable your account when appropriate.
5.6 You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and 32665) without our written permission.
5.7 If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it.
5.8 You will not post anyone’s identification documents or sensitive financial information on Facebook.

IP Freely particularly likes their "Amendments" clause:

12. Amendments

12.1 We can change this Statement so long as we provide you notice through Facebook (unless you opt-out of such notice) and an opportunity to comment.
12.2 For changes to sections 7, 8, 9, and 11 (sections relating to payments, application developers, website operators, and advertisers), we will give you a minimum of three days notice. For all other changes we will give you a minimum of seven days notice.
12.3 If more than 7,000 users comment on the proposed change, we will also give you the opportunity to participate in a vote in which you will be provided alternatives. The vote shall be binding on us if more than 30% of all active registered users as of the date of the notice vote.
12.4 We can make changes for legal or administrative reasons upon notice without opportunity to comment.

A roundup of recent trademark decisions

IP Freely is a little bit annoyed about this, he was just planning to do a round up of the numerous interesting trademark decisions doing the rounds, and what happens?????

The Law Gazette beats him to it: http://www.lawgazette.co.uk/in-practice/a-roundup-several-recent-trademark-decisions

WIPO Court?

Having watched the G20 "protests" with much interest (i.e. do these people really think a few thousand of them 'kicking up a fuss' is gonna make the slightest bit of difference to government policy then they're more retarded than they look) IP Freely noticed a piece on the IPKat to the effect that the G20 conference has reccomended a World IP Court.

The idea is that the World Intellectual Property Litigation Court is to be in action by 2012, WIPO say:

"The World Intellectual Property Organization welcomes this adoption of this proposal as a recognition of the need to balance the requirements of least developed litigation nations (the "LDL" group) with the fair treatment of intellectual property owners and creators, having regard to the organization's development programme and the need to preserve the organisation's prerogatives from unwarranted encroachments by the World Trade Organization".

The IPKat goes on to discuss quite where the court will be located, IP Freely recommends the UK so it is easy for him.

Street View

Today IP Freely has mostly been enjoying the delights of Street View, it's simply fantastic.

Currently the favourite photo has to be this beauty....ouch

As for the whole privacy issues (this is a blawg I guess so I should probably write something relevant) WHAT A LOAD OF RUBBISH. The fact is I could go down the road taking photos and there's buggar all anyone can do about it, on top of which if you don't like it then fill the form in and get Google to take it down. EASY

Virtual bank?

Regular readers will be aware of IP Freely's interest in the phenomenon that is virtual worlds. I was therefore extremely interested to read a piece on the BBC site regarding 'Entropia Universe'. It would appear that they have been granted a 'bank' licence by the Swedish Financial Supervisory Authority, this allows them to "be in a position to offer real bank services to the inhabitants of our virtual universe,".

It will allow Mindark (the people behind Entropia) to offer interest bearing accounts, deposit salaries, pay bills and give loans. For those of you worried about Iceland esque crashes you will be pleased to hear each account is protected by deposit insurance up to £42,000.

Personally IP Freely will be sticking to a traditional account for the time being, but could this be the future?

Full article available here.

Round up!

Well I haven't written anything new for a while and in this time an incredible number of interesting cases / issues have arisen. This post aims to give an overview to, or more likely just link you to other people who have more interesting things to say!

First on the list (a very out-law based list) is the news from WIPO that the number of domain name disputes in the past year have increased by 8%, according to WIPO's director: "Cybersquatting remains a serious issue for trademark holders," shocking news? I think not. It seems likely that with the introduction of new TLD's will only create more problems. I have written about the introduction of these before and without going over the issues again what I will say is that it is simply a money making scheme which will create more expense for businesses in a time when they are trying to cut back.

The next point (and my second favourite of this round up) also comes from out-law and shows quite how far social networking site Twitter has come. A juror in the States (all fools anyway?) made tweets (see IP Freely knows the lingo) regarding the case. The verdict they reached is now being appealed on the basis that the juror was biased, examples of his tweets are as follows:

"Nobody buy Stoam. Its bad mojo and they'll probably cease to Exist, now that their wallet is 12m lighter,"
"I just gave away TWELVE MILLION DOLLARS of somebody else's money"

and best of all is the following, bear in mind that at this stage he had already been found out for his Twittering, so what did he do?........:

"Well, I'm off to see a judge. Hope they don't lock me under the jail, and forget about me for four days,"

Idiot!

Finally from out-law is a tremendous story about yet another idiot. This time someone infringed their own patent! Basically the guy involved went on BBC2 hit show Dragons Den, unlike most contestants (if they're called that) he managed to convince the dragons to invest £150,000 into his business: the Rapstrap. Unfortunately for all involved this muppet had already got a patent for the product 10 years previous when he worked for a different firm, the IPO have confirmed that the Rapstrap "falls within the scope of claims 1 and 5 of the patent," what action is taken remains to be seen.

The ever reliable IPKat features two cases that caught IP Freely's eye: the Google France v. Louis Vuitton Malletier case (C- 236/08) and the Beta Layout case (although for the latter we are awaiting a full translation), I suggest you head over to the feline page to peruse their views.

Also on IP Freely's recent radar is the case of Times Newspapers Limited (Nos 1 and 2) v United Kingdom (Applications Nos 3002/03 and 23676/03), tactfully reported in the Times Law Reports (here) this not surprisingly featured the Times Newspaper.

This week IP Freely has also been fascinated with the ongoing West Ham / Tevez / Sheffield United saga (and you can possibly add to that list Neil Warnock / the players / Ledds United) which seems to become more farcical by the day. Now as I see it surely the damage suffered by Leeds United (and Neil Warnock etc) is too remote? I would though like the views of those more experienced than me on this......anyone?

UK users blocked from music vids

Youtube's negotiation with the PRS (Performing Rights Society) have ground to a halt as "PRS is now asking us to pay many, many times more for our licence than before,". Unfortunately for us this has led to Youtube blocking access to music videos for UK users.

Youtube already have deals sorted with three of the four major record labels, such deals though only cover the video and performance rights whereas the PRS represent the publishers who own the songwriting rights.

IP Freely is really dissapointed with this, there are NO winners just losers.

However IP Freely takes heart from the following statement by Youtube: "We're still working with PRS for Music in an effort to reach mutually acceptable terms for a new licence, but until we do so we will be blocking premium music videos in the UK that have been supplied or claimed by record labels. This was a painful decision, and we know the significant disappointment it will cause within the UK...We hope that professional music videos will soon be back on YouTube for our users in the UK to enjoy."

Luckily there is still a raft of probably copyright infringing live vids on there, including one of IP Freely's favourites: http://www.youtube.com/watch?v=X8JK9dQk3og

Everyone has had a bit of this pie, check out what they think: Out-law, IP Kat, and the Beeb.

Online brand abuse on the rise

According to the BBC.

Bad news for brand owners = good news for IP lawyers.

REM shoot themselves in the foot

US "rock" giants REM have issued a copyright infringement claim against Danish pop outfit Hej Matematik.

REM's record label Warners accuse Hej Matematik of copying parts of 'Supernatural Superserious' (a track recorded in 2008) in their recent release 'Walkmand'. However the Danish duo have informed Warner's that their track is in fact a cover of a 1980's hit by a Michael Hardinger, Hei Matematik stated:

"We really can't hear the similarity ourselves and if there's any at all, then it would be that 'Walkmand' originated from a sample of Michael Hardinger’s 'Walk, Mand!!' from 1981."

Michael Hardinger is reported to have given the thumbs up to Hei Matematik's version but their is no indication as to any agreement with REM. Hei Matematik are now trying to settle with REM and Warner's, it may well be though that Hardinger gets dragged in to the dispute.

IP Freely never particularly liked REM anyway and waits to see if Hardinger decides to issue against them! It is however unlikely.

Google 'get involved'

Whilst I haven't got time to write about it at present the Times has revealed that Google are 'getting involved' in the whole Microsoft EU competition 'wars', read it here.

Government proposes change to costs in libel cases

The Government has today announced plans to cap legal fees in libel cases.

A rise in both the number of libel cases and also their high profile nature has led national newspapers to complain about the "chilling effect" that the associated legal costs have on the freedom of expression.

The Justice Minister: Bridget Prentice, said: “Excessive costs and their threat may force defendants to settle unwarranted claims...The aim of these proposals is to bring more effective cost control to litigation in defamation proceedings and to ensure that costs in this area are more proportionate and reasonable...We need to ensure that people’s right to freedom of expression is not infringed and media organisations continue to report on matters of public concern. "

The proposals are: limiting hourly rates, cost-capping (or at least the consideration of cost-capping) and considering proportionality when assessing claimable costs.

IP Freely has no problem with the sentiments behind these proposals (especially considering the prevalence of CFA's in such cases and a seeming absence in keeping costs proportionate) however one would not want to see a situation whereby a client could not defend (or bring) a case for fear of not recovering their costs.

Is that a netBook?

Computer giants Dell have applied for the revocation of the 'netbook' trade mark on the grounds that it is a generic term for small, cheap computers that are designed for wireless communication and access to the internet.

'Netbook' is owned by Dell's rival Psion, they have registered the mark in both the US and also as a CTM. It is believed that Psion stopped using the mark in the US in 2004 and in Europe around the same time, however recently they have made attempts to assert their rights by sending various cease and desist letters.

Dell are arguing that "Psion has abandoned the 'Netbook' mark,". Under trade mark law if a brand name becomes so synonymous as to be merely a generic name for a kind of product then it is possible to file for it's revocation.

By way of example consider 'escalator' originally this was a registered trade mark but was revoked on the grounds that it was merely a generic name for a kind of product.

This case shows the importance of protecting your trade marks through constant vigilance, consider for example 'Tannoy' or 'Hoover' both of which it could be argued are now generic names but both brand owners have strictly regulated their use so as to ensure that they are considered as trade marks.

Further discussion can be found on The IPKat and Out-law.

Street View claim thrown out by Judge

A PIttsburgh couple that sued Google have had their claim thrown out.

Christine and Aaron Boring (no pun intended) sued the internet search behemoth after photos of their home appeared on the free mapping program 'Street View'. The couple claimed that Google violated their privacy, were negligent, trespassed and unjustly enriched themselves.

However Judge Amy Reynolds Hay ruled that they: "failed to state a claim under any count".

Street View gives users street level, 360 degree photos of areas. The programs release was met with a great deal of controversy regarding security risks, it was for example believed that terrorists would use the program to plan attacks.

Judge Amy Reynolds Hay stated:

"While it is easy to imagine that many whose property appears on Google's virtual maps resent the privacy implications, it is hard to believe that any - other than the most exquisitely sensitive - would suffer shame or humiliation,..The Borings do not dispute that they have allowed the relevant images to remain on Google Street View, despite the availability of a procedure for having them removed from view,"

"Furthermore, they have failed to bar others' access to the images by eliminating their address from the pleadings, or by filing this action under seal," she said.

"The plaintiffs [Claimants]' failure to take readily available steps to protect their own privacy and mitigate their alleged pain suggests to the Court that the intrusion and that their suffering were less severe than they contend,".

Google currently blur identifiable faces and licence plate numbers on top of which users are provided with tools to remove images from the program. A statement from Google said that "It is unfortunate the parties involved decided to pursue litigation instead of making use of these tools,".

The question remains though, what if a "victim" has no technical knowledge or experience should they still be expected to somehow get rid of the images?

Calcio v Facebook

One of IP Freely's all time favourite footballers: Alessandro Del Piero (aka 'Del Boy') is somewhat audaciously suing Facebook. A bogus page has been set up on the site which alledgedly implies that the Italian genius has neo-nazi sympathies.

It will be especially interesting to see how this one pans out considering the recent changes to Facebook's TOC's. Admittedly Facebook will probably do their upmost to settle out of court and avoid the publicity that may arise.

Lazy pirate

Every man and his dog has had their twopence worth on the 'Pirate Bay' case, IP Freely on the other hand can't be bothered but um check out a summary here.

Facebook backtrack

Further from tuther days post Facebook have now withdrawn their new EULA and returned (with tail between legs) to the old version. Their reason? to "resolve the issues that people have raised" apparently we all got the wrong end of the stick and all they really wanted to do was ensure that when a user deleted their account the posts and messages they had sent to people would still be on the recipients page.

Hmmmmm a revised verision is imminent (BBC story here).

*Update 00:53 19/02/09 now reported on Outlaw here*

Facebook goes a stealing

IP Freely has been made aware (by his good friends over at The Rebel is Down) of a change to Facebook's EULA (End User Licence Agreement although they call it their Terms of Service it is essentially the same thing). The following passage is the most important:

"You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the Facebook Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the Facebook Service or the promotion thereof."

Previous carnations of the EULA allowed users to effectively remove Facebook's rights by deleting their account (check out The Consumerist), but the passage dictating this is no longer there. Later on in the EULA is the following:

"The following sections will survive any termination of your use of the Facebook Service: Prohibited Conduct, User Content, Your Privacy Practices, Gift Credits, Ownership; Proprietary Rights, Licenses, Submissions, User Disputes; Complaints, Indemnity, General Disclaimers, Limitation on Liability, Termination and Changes to the Facebook Service, Arbitration, Governing Law; Venue and Jurisdiction and Other."

So basically if you upload anything onto Facebook then regardless of whether you leave the site and delete your account you give them licence to deal with it pretty much as they wish. Extremely unfair you may think? and for one I agree. However if you look at the EULA's of for example virtual world's then they often do the same for example:
“SOE shall exclusively own all now known or hereafter existing copyrights and all other intellectual property rights to all Submissions and Licensed Content of every kind and nature, in perpetuity, throughout the universe”

This was taken from the EULA of Sony's 'Everquest' (here). Also look at the following extract from the EULA for 'There' (check it out in full here):
“All materials you send to the Company, whether or not at our request, including, but not limited to, e-mail, postings, contest entries, Avatars, There Objects, creative suggestions, ideas, notes, drawings, concepts or other information (except any Developer Submissions as defined in the Developer Addendum) (collectively, “Submissions”), shall be deemed the property of Company and you hereby assign all of your rights, title and interest in and to such Submissions to There.com / Makena Technology Inc”

Contrast the above with that of Linden Lab's infamous 'Second Life':
“You retain copyright and other intellectual property rights with respect to Content you create in Second Life, to the extent that you have such rights under applicable law. However, you must make certain representations and warranties, and provide certain license rights, forbearances and indemnification, to Linden Lab and to other users of Second Life.”

Now we have now moved slightly away from the "privacy" point of view most people will look at in consideration of this change. But consider the intellectual property ramifications of this, for example what if you create some kind of picture or drawing and upload it on Facebook by virtue of their new EULA they have a licence to: "use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute". If you spent hours creating it and they profited from it you would be pretty peeved.

However (and more interestly) what about the opposite view i.e. what about if you rip something off and infringe someone's copyright, stick it up on Facebook, surely if Facebook themselves do any of the things that they have identified then they will be guilty of copyright infringement. One could envisage that should any claim arise then they would attempt to bring the user in as a part 20 defendant (i.e. say look ok we did it but it was his fault, him over there, not us!), with trade mark infringement there is the requirement of 'use in the course of business' the Facebook user wouldn't be doing so but Facebook might do....hence they could easily get sued. Again with copyright there are a number of 'fair use' provision such as education etc if your use was within this but then Facebook used it then they could easily be sued.

So this leaves Facebook surely in the position where yes they can use your stuff if you put it up there, but they'll be too scared to.

Afterthought: What about where your friend sends you a photo, he is the creator so he owns the copyright, he effectively licences you to use it but you cannot sub-licence it without the creators approval. Presumably then Facebook has infringed the creators copyright? (I'll look at this later, it probably says something in the EULA!).

"What do you think? Have Facebook gone too far? Do you think they risk IP infringement claims?"

FA conceeding freely

The Sports Law Blog reports that during the 2007/2008 season the FA Premier League identified 177 sites :

"which contained or were connected to unauthorised streaming of Premier League football matches"

Again this raises the topic that never seems to go away: Peer to Peer file sharing / networks with the FAPL claiming that 63% of these sites use p2p technology. It remains to be seen what is to be done about this, recent attempts by the computer game industry to clamp down on file sharers has fallen flat (see here) however the FAPL's recent £1.8 Billion sale of rights to BskyB raises more problems. Why would BskyB continue to pay such high figures when potential customers can just log on and watch for free? There are already problems with pub landlords switching to significantly cheaper foreign (pirate?) satellite providers (IP Freely himself has watched games in such venues), surely sooner or later BskyB will really put their foot down on the FAPL.

However what are they to do, as mentioned they are fighting the battle on two fronts (online and dans le pub). Online they will have to wait to see how other similar p2p cases turn out and for the pubs they will have to wait for the impending ECJ decision.

Meanwhile, anyone know where I can watch the games?

Abramovich to sell Chelsea! shh he might hear..........

The Lawdit Reading Room (look here) reports that the Russian billionaire Roman Abramovich is suing the Sunday Times for libel after they published an article claiming that Abramovich wanted to sell Chelsea football club (otherwise known as Chelski).

IP Freely is not impressed by this, whilst he has not seen the article itself he fails to see how such a statement is defamatory. How stating this negatively affects Abramovich's reputation is anyone's guess.

Financial Times for free

Cityboys across um the City will be reeling once more after news broke that their Bible (The Financial Times) has been ripped off. Basically Blackstone (the investment group) had one account for the FT's website, this account allows the user access to numerous features and articles on the site. Naturally each account is meant for just one user however Blackstone gave the login details to all of their staff , according to Out-law:

"It said in court documents that it believes an account set up by a senior Blackstone employee in 2002 was used between 2006 and 2008 to access thousands of articles at the FT website, "far more than an individual would normally access"."

The FT has now issued a claim against Blackstone (and some of it's employee's) for copyright infringement and various offences under the computer misuse and fraud laws. They say:

"Account usage from specific computers is reflected in unique 'cookies'...The number of cookies recorded and the IP addresses associated with the credentials point inescapably to widespread use of the single, individual account on FT.com by many different persons on defendant Blackstone's US-based and non US-based network servers."

It seems strange that such cases do not arise more regularly, of course detection and evidential requirements are difficult however such practices are rife (I would think) across the business world and one would expect disgruntled ex employee's to blow the whistle.

"What do you think? Is the FT right to go after Blackstone, or are they over-reacting? Perhaps there is an alternative to the Court in this circumstance?"

Don't defame my blog I know what to do

A rather interesting case on online defamation has turned up.

The basic facts are as follows: Christopher Carrie is the author of a book in which he makes claims that he was sexually abused by a Father John Tolkien (a priest) son of the famous writer JRR Tolkien (author of The Hobbit and the Lord of the Rings).

Carrie had been publishing on a blog under a pseudonym promoting his book and website, JRR Tolkien's grandson had posted a comment on the blog claiming that Carrie was lying and had tried to defraud the Catholic Church and the Tolkien family. Royd Tolkien also claimed that Carrie had previously admitted to lying about sexual abuse to attempt to extract money from the church.

Carrie denied these claims on his blog but did not delete them, Tolkien argued that this lack of action by Carrie effectively amounted to consent for the publication of the comments.

Mr Justice Eady Stated: "No explanation was offered for [Carrie] having taken no steps to delete it until his witness statement of 18 November 2008 was served...the explanation given, however, of putting the words 'in context' does not in any way detract from the validity of a defence of authorisation or acquiescence. The fact remains that he could have removed it at any time over the last 22 months."

The Court ruled that Carrie effectively consented to the publication of the remarks from the time that he responded to them. This provides an interesting precedent for future cases and to protect yourself from any such defamatory material the best course of action would be to delete such material as soon as it is posted.

OHIM see sense

There is much rejoicing in the IP Freely world today as we have just found out that the OHIM are changing the CTM application form: http://ipkitten.blogspot.com/2009/01/news-from-ohim-new-ctm-e-filing-system.html personally I hated the old one. It was difficult to fill in and anything but logical, the new one looks pretty though (albeit akin to a facebook page) and hopefully will work properly (fingers crossed).

Over 1000 unique visitors!

So tuther day IP Freely received it's 1000th unique visitor (from 76 countries none the less), in less than three months that ain't half bad!

The music you are downloading is illegal (probably)

95% of music downloads are illegal (according to the International Federation of the Phonographic Industry (IFPI) see original BBC article here) although there has been a 25% rise in legal downloads since last year.

The chairman of the IFPI stated:

"There is a momentous debate going on about the environment on which our business, and all the people working in it, depends."

"Governments are beginning to accept that, in the debate over 'free content' and engaging ISPs in protecting intellectual property rights, doing nothing is not an option if there is to be a future for commercial digital content."

However the Open Rights Group have different views:

"We are worried by the recording industry's desire to clamp down on illicit file sharers."

"We need to see how much better these companies do by getting their services right before governments start pushing drastic and draconian laws forward."

"Growing online sales show the recording industry can win against illicit file sharing."

"If companies go further and offer the same sort of experience as P2P then they will win new revenues, and reduce copyright infringement, which we would welcome."

So where does IP Freely stand? I hear you cry. Well with the Open Rights Group if you must know, where industries have taken action before it has ended disastrously (think the computer game industries ongoing attempts) at present more time should be spent on the technologies involved as opposed to legislating to punish the "theft". All that will happen if legislation comes first is that even before the legislation is pushed through it will be outdated and useless. Before going after their customers the music (and other entertainment) industry need to look at their business models, perhaps by being creative in the way they make their money they won't need to alienate the consumer.

"What do you guys think though? Is it right for the entertainment industries to protect their interests through application of the law or should they pull the proverbial finger out and come up with new ways of doing business?"

European Commission makes life harder for retailers?

Online shopping is predicted to account for around 50% of retail sales within 5 years, however despite it's popularity consumer confidence with the security of such transactions is low. In an attempt to remedy these fears the European Commission launched proposals to both strengthen and harmonise the rights of consumers shopping in the EU (note that the proposals also cover high street stores). Their main aim in improving consumer confidence is to increase the number of sales across EU borders and thus encourage more competition.

These proposals are aimed for implementation by 2013 however they have not been universally welcomed by retailers, basically this is because it will make it increasingly difficult for retailers to justify so called 'local pricing'. By 'local pricing' I am basically referring to the practice of charging one price to for example UK customers and a different price for Polish customers for example.

Presently consumers shopping in the EU are protected by no less than four seperate Directives:

• Doorstep Selling Directive (1985/577/EEC), this gives consumers a right of cancellation;
• Unfair Contract Terms Directive (1993/13/EEC), this prevents the use of unfair contractual terms;
• Distance Selling Directive (1997/7/EEC), this ensures consumers are given adequate information in distance selling situations (for example mail order or online sales); and
• Sale for Consumer Goods and Associated Guarantees Directive (1999/44/EEC)

The Directives have been implemented by Member States in very different ways, obviously this makes life very difficult for retailers who wish to offer products on sale across the EU. Under the new proposals the European Commission aims to ensure that Member States do not divert from their provisions.

As for the proposals themselves? Most of them are merely a consolidation of existing law but there are a couple of new points. Firstly delivery and passing of risk this is to provide that delivery is made within 30 days from the signing of the contract regardless of where the consumer is based and a right to a refund no later than 7 days from the provided delivery date. More interestingly the proposals provide that the risk is to stay with the retailer until the item is received by the consumer. Additionally there are a raft of new unfair contract terms, changes to 'door to door selling' to encompass all 'off premises selling', a ban on pre-ticked boxes for additional purchases (for example guarantees etc) and the information requirements previously found in the Distance Selling Directive are to be extended to cover online auction sites such as eBay.

As mentioned at this stage the proposals are just that, proposals but it seems likely that they will be approved by the European Parliament and the Council of Ministers in readiness for the planned implementation date of 2013.

"What do you think? Is this just bureaucracy for the sake of it? Or does the law really need updating to protect consumers?"