Wednesday, February 25, 2009

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.

Tuesday, February 24, 2009

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.

Monday, February 23, 2009

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By way of example consider 'escalator' originally this was a registered trade mark but was revoked on the grounds that it was merely a generic name for a kind of product.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

Sunday, February 22, 2009

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?

Saturday, February 21, 2009

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.

Wednesday, February 18, 2009

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*

Monday, February 16, 2009

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 / 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?"

Saturday, February 7, 2009

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?

Thursday, February 5, 2009

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 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?"