LawClanger

A tempting target, but a dubious tactic

2011-11-29T22:15:00.004Z

A few days ago a friend retweeted a link to a campaign that took an unusual approach to expressing distaste at The Sun's campaign against benefit fraudsters.

Pride's Purge - Help Fight Back Against Murdoch’s Benefit ‘Scroungers’ Hotline

The blog's author, Tom Pride, is encouraging people to report 'fat-cat bankers' to the Sun email hotline. Or, more specifically, he is encouraging people to do this so much that the hotline is overwhelmed:

"Simply by repeatedly sending as many emails as possible with the names of scrounging bankers who have used taxpayers money to pay themselves massive bonuses, the hotline can be crashed."

Now I have no love for the Sun - about the only good thing I can say for it is that it is not quite as revoltingly toxic as the Daily Mail. But I do have a concern about Tom Pride's campaign, because it is encouraging people to break the law. My particular worry is that most people who like the look of this and feel tempted to join in probably won't have any idea that this is, in fact, illegal.

When the Computer Misuse Act 1990 was originally enacted its Section 3 created the offence of 'unauthorised modification of a computer'. The intent was clearly to create an offence of hacking, but as time went on it became clear that a computer might be attacked in a manner that was not obviously 'unauthorised modification'. In particular, Denial-of-Service (DOS) attacks were, some commentators suggested, not caught by s.3. Matters came to a head in 2005 when David Lennon carried out a mail-bombing attack on the email server of Domestic & General plc. At his trial Mr Lennon's defence was that his actions had not been unauthorised, because an email server is specifically intended to receive emails, so he had done nothing to it that he had not implicitly been authorised to do. The judge struck out the case against Mr Lennon on this basis, but the Director of Public Prosecutions appealed and so the Court of Appeal considered the meaning of s.3 CMA 1990. Mr Justice Jack, in giving the Court's judgment that the prosecution should continue, considered that the authorisation had implied limits:

"I agree, and it is not in dispute, that the owner of a computer which is able to receive emails is ordinarily to be taken as consenting to the sending of emails to the computer. His consent is to be implied from his conduct in relation to the computer. Some analogy can be drawn with consent by a householder to members of the public to walk up the path to his door when they have a legitimate reason for doing so, and also with the use of a private letter box. But that implied consent given by a computer owner is not without limit. The point can be illustrated by the same analogies. The householder does not consent to a burglar coming up his path. Nor does he consent to having his letter box choked with rubbish. That second example seems to me to be very much to the point here. I do not think that it is necessary for the decision in this case to try to define the limits of the consent which a computer owner impliedly gives to the sending of emails. It is enough to say that it plainly does not cover emails which are not sent for the purpose of communication with the owner, but are sent for the purpose of interrupting the proper operation and use of his system."

Even before the Court of Appeal had given its ruling though, Parliament was already planning to revise the CMA to close this loophole. The Police and Justice Act 2006 amended s.3 CMA 1990 so that the offence it created was instead one of an unauthorised act impairing a computer's operation. No longer was in necessary to show that there had been some change made to a computer; it is now enough to show that the computer, even if doing what it was intended to do (e.g. receive emails) has been impaired in that function. The amendment also extended the offence to include reckless, as well as deliberate, impairment. So, both by statutory amendment and by case law (Lennon) it is now clear that mail-bombing a mail server to the extent that it is no longer usable is a criminal offence (and other forms of DOS attack, including distributed DOS, are similarly offences.)

What this means, I'm afraid, is that fun though it may be to suggest burying the Sun hotline in irate email, it's actually against the law to do this. It's directly illegal to send such emails, although to be pragmatic the likelihood of prosecution for sending a particular email is pretty low. (I wouldn't be so sanguine if anyone used a mail-bombing app, though.) It's also illegal, under the long-standing rule against 'aiding, abetting, counselling or procuring an indictable offence', to encourage other people to do this - as, it seems, the blog author here has. (In the comments to the post, Tom Pride says this isn't a DDOS attack. With respect, as I've tried to explain here, in the eyes of the law it is.)

As the two young men who tried to organise riots via Facebook found, it's very easy to get into a lot of trouble by saying something online. There's a good argument that it's far too easy, as Paul Chambers found out in the ongoing saga of the Twitter Bomb Joke trial. But as it is, it's worth pausing for thought - and perhaps a check of the law - before seeking to unleash the wrath of the Internet on a target, however deserving it may seem.

SCL Conference 2011-Day 2

2011-10-15T13:00:00.000+01:00

Balancing risk in outscoring contracts -Mark Crichard, Andrew Collyer, Richard Bligh. Interesting comments on and insights into some of the complexities of developing outsourcing contracts. To what extent has the Centrica case made it necessary to clearly specify what will be considered as direct and indirect losses? Do customers understand the difference between losses that are indirect and those that are simply remote? And how do you cater for customers who want to outsource but to host their data and services on their own systems? (A: with carefully worded exclusion clauses, so it seems.)

Social Media: strategy for business - Gillian Cordall, Nina Barakzai, Chris Reed. How to best use social media? Engage with customers by talking not just about yourself but about developments potential clients are interested in. Dangers of getting it wrong, e.g. recent Toyota social marketing lawsuit - over-focussed campaigns may damage your reputation with other customers. And who 'owns' the contact list for successful social media - the front face of the media, or the employer?

Social media strategy can be reactive and responsive, e.g. Dell's 'Global Listening' - engage with commenters and respond. Does work better if you have the resources to monitor, filter and resound to social media, but for a well-known brand can have significant impact!
It's important to have clear policies and codes of conduct (especially re transparency) and to comply with relevant laws. Above akk, you have to engage, not just broadcast.

Litigation: the cancer of disclosure - Ben Rooney, Alexander Carter-Silk, Edward Rippey, Kim Lars Mehrbrey. A US, English and German lawyer ~~walk into a bar~~ discuss discovery/disclosure. US discovery can take years and cost millions, but you go into a case knowing pretty much everything. German civil law barely has disclosure: parties present their case based on what documents they choose. English disclosure is very much based on proportionality, albeit subject to the risk of costs penalties for improper disclosure. Which is 'best'? Modern search tools make it almost impossible for someone to convincingly hide evidence, but can this lead to over-enthusiastic searching and excessive preparation costs. We are also seeing forum-shopping, as litigants look for the jurisdiction with the disclosure regime most favourable to their case.

SCL Conference 2011 - Day 1

2011-10-14T14:39:00.000+01:00

I'm at the Society for Computing and Law's 2011 Conference in Bath, with the theme of New Technology v High Risk. I'll aim to blog updates on the sessions as we go along, so refresh for details.

Technology, Risk and Law - Dr Andrew Martin, University of Oxford.
A heartfelt plea for professionalism in the IT industry, in the context of properly understanding what risk is and what technology can and cannot do. Andrew Martin observed how we are increasingly reliant on security entities we have no knowledge of (eg certification authorities) and, with more and more of our household devices not only being connected to the Internet but having multiple sets of our credentials, this poses risks of security failures it is hard to be aware of, let alone properly quantify. He put forward three wishes for the genie that we have let out of the bottle: better technology, in the sense of understanding and removing vulnerabilities; more realism as to what IT can and can't do; and more focus on reliability and robustness in place of pushing the state of the art.

Cyber-crime - Prof Ian Walden (QMUL), Det Sup Charlie McMurdie (Met Police), Neil Hare-Broom (QCC Forensics)
Cyber-crime is getting more sophisticated; we are seeing seized PCs with over a dozen virtual machines, or more than 8TB of data to be examined. Some suspects have literally dozens of online IDs. The problem is made worse by the declining effectiveness of anti-malware protection, the growing pressure (from economy and convenience) for businesses to allow use of employee devices for work, and the jurisdictional challenges of cloud computing. The panel couldn't offer a simple answer, with views from "it can only get worse" to "we have to do what we can to help ordinary users and shouldn't just accept that this happens". Again, the question of how much we accept poor reliability in software came up - should we extend consumer protection law to cover the quality of software security? Ditto for enforcing pervasive use of encryption to protect payment details. Interestingly, the police officer was wary of adding more and more laws, on the basis that threats of prosecution can deter reporting - carrots are better than sticks.

Dropbox Terms of Service not actually that evil

2011-07-04T17:34:00.008+01:00

There's an old saying that there's no such thing as bad publicity, but I'm not sure that Dropbox believe that right now.

It was embarrassing enough a couple of months ago when in response to security concerns Dropbox had to concede that their much-vaunted claim for totally secure encrypted hosting of data via the cloud wasn't quite as totally secure as most people assumed. Dropbox's explanation made sense - in order to allow web-based access, they need the ability to decrypt user files - and they reiterated assurances that there were procedural safeguards against their staff snooping such content. But trust in Dropbox took a dent.

Nothing like the dent it took the other week though, when a technical glitch left all Dropbox accounts open to access for several hours. Dropbox management were at least quick to concede fault and to advise users to check their account logs for unexpected activity, but this incident seriously tarnished Dropbox's reputation.

Which is probably why Dropbox are now in the news again, following a recent revision of their Terms of Service. When you've heard two lots of worrying news about a company, it's easy to believe the worst when a third story comes along. Now, ToS of cloud service providers are a particular interest of mine, so as a somewhat concerned Dropbox user myself I was keen to see whether there was genuine cause for concern.

What Dropbox have done is to make a generally admirable attempt to make their ToS as comprehensive, open and at the same time easy to understand as possible. I can well imagine why, in light of recent problems, they'd want to do this, although it's a difficult balancing act to try to achieve at the best of times. As Facebook found out, with its infamously longer-than-the-US-constitution privacy policy, detail and readability don't always go together. But having said that I think Dropbox have made a pretty good attempt at it, and their revised ToS are certainly a lot more concise and accessible than many I've had to review.

The particularly contentious part comes under the heading Your Stuff and Your Privacy. It says:

We sometimes need your permission to do what you ask us to do with your stuff (for example, hosting, making public, or sharing your files). By submitting your stuff to the Services, you grant us (and those we work with to provide the Services) worldwide, non-exclusive, royalty-free, sublicenseable rights to use, copy, distribute, prepare derivative works (such as translations or format conversions) of, perform, or publicly display that stuff to the extent reasonably necessary for the Service. This license is solely to enable us to technically administer, display, and operate the Services. You must ensure you have the rights you need to grant us that permission.

Is this a massive rights-grap by Dropbox? Well, no. This particular term is very common in cloud, blogging and social-networking services. It arises because in any cloud-based service the provider has to copy your data in order to store it and make it available, and indeed has to publish it if you share that data with friends or the world at large. Whilst there are good legal arguments that you are implicitly granting Dropbox (or any other provider) permission to do this by the act of signing up to the service, for entirely understandable reasons Dropbox prefer to make it clear in your user agreement that this is what they're going to do, and that you the user are happy with it. As one of the comments to the Slashdot story I linked to explains, the scary-looking language is actually quite reasonable given how the service is used:

Worldwide = Dropbox provide a globally-available service.

Non-Exclusive = Dropbox can't and don't prevent you from licensing your data in other ways.

Royalty-Free = You won't charge us for this!

Sublicensable = Dropbox need to allow technology partners to copy your data too.

The caveats in the terms make it clear that Dropbox are invoking this licence only for the purposes of providing the service to users. In that respect it's narrower than, say, Facebook's corresponding term (here, clause 2.1), which sets no limits on the use Facebook may make of data that you share online.

What I know has concerned some people though is the rider at the end of Dropbox's clause about 'You must ensure you have the rights you need to grant us that permission.' Does this mean that you can only store content on Dropbox if you either created it or have licensed it on terms that allow you to copy it?

I think that the practical answer to this is that you are probably fine so long as you don't go beyond the implied scope of what you are supposed to do with the material in question. To take an example, I quite often use my Westlaw access to download a case report or journal article. Westlaw give me the option to email it to myself - an activity which necessarily creates transient and, via webmail, not-so-transient copies of the copyright work in question. But nobody else has access to those, and they are incidental to my approved use of the service. I consider that saving such reports or articles to my Dropbox folder is equally legitimate. What would not be legitimate is sharing or publishing links to them - that would be outside the scope of what Westlaw is letting me use the service for.

In a similar vein, just because Dropbox is in a very technical sense 'publishing' your content back to you when you view it via a web interface, that is not what I, or anyone, would normally regard as 'publishing'. If you store the manuscript of your novel on Dropbox, you aren't publishing it by doing so; indeed, you still aren't even if you share it with a circle of test readers. As such, you're not breaking any exclusivity clause with your actual publishers by doing so.

There's a lot of concern about the security of cloud and social networking services and the fine detail of what can be found in their ToS (often with very good reason). However, if you do find a scary-looking clause, look to see if it's a common one, and if so find out what it actually means. It may well be a lot less alarming than you might at first think.

And it's going to be a Trilogy!

2011-01-24T21:23:00.004Z

I started this blog with a post about Lucasfilm v Ainsworth, and just over a year ago I discussed the appeal, in which Mr Ainsworth - former prop-maker for the original Star Wars and now manufacturer of replica Stormtrooper attire - had not only maintained his victory on the copyright points but had overturned the decision that Lucasfilm's US judgment was enforceable against him. I felt at the time that there was every prospect of the case going all the way to the then-new Supreme Court and it turns out sure enough the Supreme Court website is now listing Star Wars III: The Revenge of the Claimant to begin on 7th March. (In fact the news came out a good fortnight ago, but I will plead the start of pupillage as an excuse for not noticing at the time.)

More details have been supplied by The Lawyer. George Lucas has deployed the big guns this time around, with Jonathan Sumption QC joing Robert Bloch QC, counsel in the original hearing and the appeal. That Sumption - reputedly one of the most expensive members of the Bar - has been instructed is indicative of the seriousness with which Lucasfilm is taking what it will see as a serious threat to its merchandising rights. As this article puts it, "Hollywood believes the outcome will have major implications for the UK film industry and the movie moguls came out in force in support of Lucas’s fight to have the case heard by the Supreme Court."

It would be a mistake though to see this as a case entirely about copyright. Indeed, my own prediction is that the Supreme Court will not disturb the well-reasoned argument of Mr Justice Mann about the definition of sculpture under CDPA 1988, as endorsed by Lord Justice Jacob, the Court of Appeal's leading specialist on IP matters. What the case may by now be focussing more on is the question of jurisdiction and enforceability of judgments, the area where the Court of Appeal reversed the original decision. Writing in the Cambridge Law Journal, Pippa Rogerson has made a cogent argument that the Court of Appeal misapplied the Brussels 1 Regulation in holding that a copyright dispute in the USA is not justiciable in England. (See CLS [2010] 69(2), 245-247.) If the Supreme Court accepts this view, then Ainsworth may well find his case being assessed under the copyright law pertaining in California, under which it is apparently clear that he would have infringed Lucasfilm's rights. Such a decision could have far wider-ranging implications though, potentially making it far easier for US-based rights-holders to sue for copyright infringement in England.

Whatever happens, one firm prediction I'll make is that this case will get even more coverage this time around. Brace ourselves for more Star Wars themed legal humour, we must.

Cloud, Copyright, Hosting and Jurisdiction

2010-12-07T11:30:00.004Z

Computerworld UK has published a short piece by me on the jurisdictional issues of copyright and database infringement in the Cloud. I discuss the recent ruling on this point in Football Dataco v Sportradar and suggest an alternative model for determining where material is 'made available'.

Wikileaks - Cloud's First PR Crisis?

2010-12-03T22:12:00.003Z

This week has seen what may be a first for Cloud computing: the very public termination of service of a major customer for alleged terms-of-service violations. I refer of course to Wikileaks, thrown off of Amazon Web Services for a range of reasons relating to the controversial content Wikileaks was hosting there. Of course, organisations have had Cloud services terminated before, but this is by far the highest profile case I’m aware of. Equally high-profile has been the resulting criticism of Amazon, with many supporters of Wikileaks complaining that a company that is in the very business of promoting the free flow of knowledge is now engated in censorship. So, what was Amazon’s motivation here?

Amazon is still first and foremost an online shopping site (I would have said bookshop, but it is long past being just that). Its web services account for a little over one percent of its turnover, although that fraction is rapidly growing. But this doesn’t mean that Amazon is a bit player in the Cloud computing business. Far from it; Amazon Web Services is one of the market leaders and is the standard against which IaaS (Infrastructure as a Service) Cloud services are judged. A vast number of online services, including many other Cloud-based organisations, use one or more of AWS’s products; EC2 for on-demand computing power, S3 for flexible storage, or one of many others. Amazon lists an impressive array of businesses that use AWS; ironically, it includes Guardian News and Media - one of the main disseminators of the leaked cables - among many others.

It’s not hard to see that Amazon found itself in a difficult position when it became aware that it was hosting Wikileaks. (And yes, ‘became aware’ is probably how it happened – I’ll explain in a moment). Yes, there have been threats of a boycott from those upset that it has dumped Wikileaks. But if it had continued to host it, I don’t doubt that there would have been widespread calls for a boycott from those unhappy with Wikileaks – and there are a lot of people in that camp. On the figures above, Amazon would only have to lose 1% of their online retail business to wipe out their entire income from AWS, and someone in Amazon’s management probably made a pragmatic call that they’d lose a lot more business by continuing to host Wikileaks than by dropping it.

But that’s not the only consideration. Pretty much everywhere that has hosted Wikileaks has sooner or later seen denial-of-service attacks. You don’t even have to ascribe these to conspiracies; there are plenty of people out there who combine a political viewpoint at odds with Wikileaks with the technical knowledge needed to hire a botnet. (Which isn’t much, and in yet another irony botnet-based DDOS attacks are yet another form of Cloud computing). But if you start to DDOS an organisation hosted by a Cloud provider, then you risk causing a lot of collateral damage. We saw a version of this when Spamhaus started to block spam sites that had been set up on AWS, and in doing so inadvertently blacklisted numerous legitimate users of Amazon’s services. A DDOS attack on Wikileaks whilst it was hosted on AWS could well have knocked out many of those sites listed earlier. And if their lawyers could show that AWS knew that it was hosting a prime target for attack alongside them… well, it would be an interesting question as to how liable Amazon would be, but I dare say Amazon’s own lawyers may have suggested that finding out in the courts could be expensive.

In short, Amazon faced a lot of grief if it kept Wikileaks on board. And, under their Terms of Service, they were entitled to drop them. A lot has been written about whether Amazon’s explanation – a breach of Acceptable Use terms – holds water, but at the end of the day Clauses 3.4.1(vii) and (viii) of the AWS Customer Agreement give AWS very broad grounds for summarily terminating the use of even a paid account:

(vii) we receive notice or we otherwise determine, in our sole discretion, that you may be using AWS Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (viii) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason;

Now, why didn’t AWS act sooner? This story suggests that Wikileaks started using AWS on Sunday 28 November. But it’s not as if Assange negotiated to use the service; one of the common characteristics of Cloud computing sites is that users can sign up online and pay via credit card. When Joe Lieberman asks, as he apparently has, for details of Amazon’s relationship with Wikileaks, the answer is that it was probably very like Transport for London’s relationship with me concerning my Oyster card. Yes, we have a contract, but it’s one I made by buying credits from a top-up point; TfL are barely aware in any meaningful sense that I exist. Amazon probably only realised they were hosting Wikileaks when they began to get complaints.

So what does this affair tell us about Cloud computing? It’s a big business, but still small in comparison with, for example, online retailing. It’s easy to sign up to, but it’s also easy to get booted off from, thanks to very permissive terms of service (and AWS’s terms are entirely typical of those we saw in the QMUL survey of Cloud terms). But perhaps the most important aspect of Cablegate for Cloud computing is the way that, by drawing attention to Amazon’s Cloud business, it’s put Cloud computing into the public eye.

The Sound of Silence

2010-11-16T15:53:00.003Z

As a supporter of the Royal British Legion (and an ex-serviceman myself) I'm pleased to see the RBL finding new and innovative ways of raising money. This year they have taken the novel step of releasing a single of the Two Minutes' Silence. You can see a short excerpt from the video here.

Now at this point I was suddenly reminded of John Cage's silent 4'33" and more specifically the legal case brought by Cage's UK publishers against Mike Batt (better known to many for the theme song of The Wombles) for allegedly infringing it. Batt included a one-minute silent track on an LP, crediting it to "Batt / Cage". The case settled out of court, reportedly for a substantial sum, although this denied the chance for some judicial enquiry into the extent to which copyright exists in silence.

For a detailed review of the legal issues see Cheng Lim Saw's very thorough analysis in 'Protecting the sound of silence in 4'33" - a timely revisit of basic principles in copyright law' [2005] EIPR 7:12. Cheng Lim Saw concludes that 4'33" very likely does not attract copyright protection under English law, although the question is not as trivial as it might at first appear. For example, the work is not simply a silent interval; it is meant to be performed (albeit very passively) so an audience will always be aware of background noise and environment. But what copyright was asserted in was not a specific recording of a near-silent performance, but the piece itself, and in Cheng Lim Saw's view this is where the copyright claim fails, for how can there be certainty in the identity of the work copied if the piece has no content to be identified?

So what about the RBL's track? Well, it is not a work of sound - or silence - alone. It is a video, featuring well-known personalities as well as injured soldiers as they observe silence. Although everyone in it is static there is no reason to believe that it is not a dramatic work, in terms of the composition and editing. And, as with 4'33" the soundtrack is not truly silent; rather it records the sounds of someone standing still.

In a sense the RBL video has a very important point in common with 4'33": it is meant to make the audience concentrate and reflect on the attempt at silence, although the two works do so in very different contexts. I agree that if the Batt case had gone to trial the copyright claim might well have failed, but were there other potential heads of claim that could have been more arguable? (False attribution, for instance, or passing off; Batt's real mistake may have been in putting Cage's name to his track.)

I very much doubt that the RBL are going to find themselves following Mike Batt in terms of receiving a claim for copyright infringement. A silent video, even if it's point is the depiction of silence, is not a performance of a 4'33", even if the later does enjoy copyright protection - which it probably doesn't. But part of me wishes that there was another case on this that went to litigation, because I would love to hear the legal arguments put forth.

I Aten't Dead

2010-09-09T14:02:00.002+01:00

...as Sir Terry Pratchett's Granny Weatherwax would put it, although one might be forgiven for wondering, looking at this blog of late. My sole excuse is that I've been employed investigating and writing about IT law as my day job for the last few months, which has inclined me less to blog about it as a hobby.

However, that work has now borne fruit and so this is a good point at which to get LawClanger going again. The QMUL Cloud Legal Project has just produced 'Contracts for Clouds: Comparison and Analysis of the Terms and Conditions of Cloud Computing Services', by Simon Bradshaw, Christopher Millard and Ian Walden, and available for download from SSRN.

'Contracts for Clouds' is based upon a detailed survey I carried out of the Terms and Conditions (T&C) for 31 different Cloud computing services from 27 providers. It began as a baseline study to identify how Cloud providers made reference to some of the wider legal issues we are planning to address in other Cloud Legal Project papers, but it soon became clear that the results were worthy of a paper in their own right. Although there have been a few other reports looking at Cloud T&C, we believe ours is the first that provides a detailed, referenced review of a wide set of T&C together with a comparitive analysis of the terms found. And what we found makes for interesting (to put it politely) reading for prospective Cloud customers.

Many Cloud services, for instance, have clauses in their Terms & Conditions that disclaim all responsibility of the provider for keeping the user’s data secure or intact. Often, providers will reserve the right to terminate accounts for apparent neglect (important if they are used for occasional backup), for violation of the provider’s Acceptable Use Policy, or indeed for any or no reason at all. Customers more worried about their data being seen by others than being lost might also be concerned at some of the terms seen in the survey that related to third-party disclosure. Whilst some providers promise only to hand over customer data if served with a court order, others state that they will do so on much wider grounds – including it being in their own business interests to do so.

We also found that providers very commonly exclude any liability for loss of data or for damage arising from it, or seek to strictly limit the damages that can be claimed against them – damages which might otherwise be substantial if loss of data or services brought down an e-commerce web site, for instance. Customers who seek to challenge their Cloud provider in court might also be in for a surprise when they look at the relevant terms: such providers usually claim that the contract is made under the law governing their main place of business, which in many cases is a US state, and that any dispute must be heard in the provider’s local court.

This isn't to say that Cloud services are dangerous, or that providers are especially cavalier. The terms we saw most likely reflect a desire of many Cloud hosts to remain as much a 'mere conduit' of information services (even though they are clearly hosts) as possible, and to keep customers at arm's length. Whether such T&C evolve so as to be more aligned with customer expectations and interestes will be interesting to see, and indeed will be an ongoing point of study for the Cloud Legal Project.

Francis Davey on E-Books and DRM

2009-12-30T12:41:00.003Z

One of the things I like about volunteering for the Open Rights Group is that you get to meet smart and interesting people like Francis Davey. A query on one of ORG's mailing lists has prompted Francis to write a review of the law surrounding DRM and e-books, likely to be of interest to anyone thinking of buying an e-book or e-reader.

Star Wars II: Ainsworth Strikes Back

2009-12-21T00:02:00.005Z

Nearly a year and a half ago my first substantive entry was about the High Court judgment in Lucasfilm v Ainsworth, alias the Stormtrooper Armour Case. I said at the time:

"Both sides will want to appeal; Lucasfilm against the decisions on copyright and enforceability of the US judgment, Ainsworth against the decision that he is liable under US copyright law. If permission to appeal is granted - and the legal issues are controversial enough that I would be astonished if it is not - then we are unlikely to see a hearing until the middle of 2009 or so."

Ah, such naive optimism! The appeal hearing wasn't until November, and the judgment (Rix, Jacob and Patten LLJ) was handed down last Wednesday. Other minor matters (plus my job) have been occupying me since then, during which time several bloggers far more informed and eloquent than me have given excellent summaries of the outcome. I fully endorse the IPKat's disappointment that the meaning of 'Work of Artistic Craftsmanship' was not further discussed, whilst I still feel that the array of (not inexpensive) Star Wars memorabilia on sale at such geek emporia as Forbidden Planet lend some support to The 1709 Copyright Blog's nagging anxiety that something as iconic as the Imperial Stormtrooper must have some element of artistic merit. But that was not quite the question Their Lordships were being asked to rule on, and in the end Lucasfilm v Ainsworth stands as an illustration of how trying to draw a boundary between Industrial Design and Artistic Copyright is bound to lead to cases where a work that would seem to belong on the fact of it in one category ends up being placed in the other.

This is very much borne out by the reaction of web sites and blogs aimed at science fiction fans, as seen in this post on io9. Almost without exception the reaction is one of disbelief that the armour was not deemed to be a work of art, although it seems that few commentators appreciate that this judgment has a relatively narrow scope - it is certainly not the end of all IP protection for Lucasfilm, for instance. Meanwhile, for a perspective from the movie prop and memorabilia business, see this write-up from The Original Prop Blog.

Andrew Sharpe of Charles Russell probably has the best title of any write-up of this case; yes, I know Jeremy Phillips beseeches us not to use dreadful puns for IP reports, but I can't help but liking "Obi-Wan Jacobi"! As well as an excellent summary of the issues at hand, he also notes that Lucasfilm have very strong motivation for seeking a further appeal to the Supreme Court, and not just on the basis that its Star Wars productions tend to come in trilogies...

Meddle Not in the Affairs of Wizards

2009-10-26T22:35:00.002Z

As you might notice from the updated profile I am no longer swelling the ranks of the unemployed. (In fact, since for various reasons I wouldn't have qualified for any benefits I never signed on, so strictly speaking never did, but I'm allowed the odd metaphor now and again.) I am now an RA in QMUL's Law Department, working at the Centre for Commercial Law Studies on a project looking at the legal issues relating to cloud computing.

More on that some other time, perhaps, but for now I see that IP is back in the news again with the story of 'Ms Marmite Lover', who is being threatened by Warner Bros for planning to put on a Harry Potter themed dinner. For once we have more than newspaper stories (written, with the best will in the world, by someone who probably doesn't know much about trade marks or copyright*) as Ms M-L has kindly reproduced the cease-and-desist letter in question.

[*I'm not suggesting reporters or staff writers are legally ignorant. However, most are probably hottest on subjects such as defamation and privacy.]

I'm afraid I can see W-B's point. It looks like this is not quite a domestic dinner party, but rather an openly ticketed event, so Ms M-L is arguably using the phrase 'Harry Potter' - a trade mark of Warner Bros - in the course of trade. Now, she understandably claims that from her point of view she is using it purely as a sign of being a fan rather than a suggestion that her food is somehow from, or endorsed by, either Warner Bros or J K Rowling herself. Unfortunately this is a buoy we've all sailed round before during the voyage of Arsenal v Reed, with its ECJ ruling, endorsed by the Court of Appeal, that 'badges of affiliation' can and do infringe trade marks. Having said that, Ms M-L's use seems rather de minimis and there is a risk that Warner Bros' action may be seen as yet another example of Big Business using IP rights to squash what most people would see as harmless fun. As a supporter of and believer in IP I think it needs all the good publicity it can get, but these days it only ever seems to get the other sort no matter how hard the IPO tries to rope in the services of Wallace and Gromit.

ORG Debate on Three Strikes - London, Fri 2 Oct

2009-09-14T11:52:00.003+01:00

If you're interested in the whole ongoing mess about the threat to cut off the net access of alleged file-sharers (see my earlier posts on three strikes) then come along if you can to the Open Rights Group's forthcoming public debate on the issue. It's on the evening of Friday 2 October near Farringdon, and if you book in advance it costs £10 if you're an ORG supporter or £15 otherwise. Or if you book now and become and ORG supporter by the time of the event, admission is free!

3 Strikes: Here We Go Again

2009-08-25T19:01:00.003+01:00

A little while back I blogged about how the Digital Britain report appeared to accept that delivery of government services by internet was so important that disconnection as a sanction for filesharing was a step too far. (For earlier discussions of Three Strikes and Amendment 138, see here, here, here and here.) Well, as is being extensively reported (Guardian, Technollama, BoingBoing) it now appears that there has been if not exactly a U-turn then certainly a sharp veer in the direction of harsher measures - 'harsher' meaning 'including disconnection from the internet'.

So what exactly is being said? This release from the Central Office of Information announces not new laws but rather a revised consultation process regarding sanctions for filesharing. It seems that following feedback from rightsholder organisations (and more on that below) HM Government has decided both that the original timescale - which would not have seen measures implemented until 2012 - was too long, and that it was wrong to rule out disconnection as a sanction.

What we now therefore have is a revised and extended consultation from the Dept of Business, Innovation and Skills (PDF here) seeking further input on a number of these issues. Some parts of this consultation particularly caught my eye. For example:

"Any technical measures deemed necessary and appropriate by the Secretary of State would be introduced by Ofcom via secondary legislation."

It's important to note that 'secondary legislation' means statutory instruments which are not voted on by MPs, although MPs can register objections to them - if they hear about them in advance amidst New Labour's avalanche of secondary legislation. In other words, our MPs won't be asked to vote on this.

"It would be important to ensure as far as possible that innocent people who may be affected by such technical measures would retain access to the Internet services they need, including online public services."

That's jolly nice to hear, although 'as far as possible' includes quite a lot. I may be being unduly cynical, but I can't help wondering if the terminals in local libraries (or as Tower Hamlets now calls them, 'Idea Stores') will be deemed to provide such essential access.

Then we get onto the question of measuring illicit filesharing and defining what is and isn't acceptable. The original plan was for a detailed study of this, on the basis that policy should be based on evidence. Actually, I take my earlier words back - here there is a blatant handbrake turn.

"Evidence – although we have no doubt Ofcom would have carried out their research under the original proposals in their usual thorough manner, measuring unlawful P2P activity across a range of networks and different content is extremely difficult."

This is what a former colleague of mine called 'filing in the TOO DIFFICULT' tray.'

"On reflection, using a precisely defined “trigger” as the basis for introducing technical measures would not be sufficiently flexible (for example it would not allow the wider health of the broadband or content markets to be taken into account), and under-estimated the inherent difficulties of measuring this unlawful activity with precision."

Or, to put it another way, drawing a line in the sand involves awkward questions about where the line should go...

"In reaching his decision, the Secretary of State will have to carefully weigh the evidence available to him and make any order on the basis of defendable information based largely but not exclusively on the reports from Ofcom."

...so instead lets listen largely to Ofcom's general thoughts, plus input from other sources (I can't imagine who.)

"But even so, the Secretary of State can do this much quicker than the process which the regulator would have to go through if acting alone."

Because when a large rights organisation is breathing down your neck, speed, rather than accuracy, is of the essence!

Then we get onto talking about disconnection.

"Since the issue of the consultation some stakeholders have argued strongly that none of those technical measures is powerful enough to have a significant deterrent effect on infringing behaviour."

In other words, the self-appointed gamekeepers are not surprisingly complaining about being denied sufficiently big mantraps.

"Taking those points into account, although we continue to regard the uptake and use of Internet services as essential to a digital Britain, we are considering the case for adding suspension of accounts into the list of measures that could be imposed."

Translation: "Having been told that we're a bunch of wusses, the nuclear option is back on the table."

"...this step would obviously be a very serious sanction as it would affect all members of a household equally, and might disrupt access to other communications, so it should be regarded as very much a last resort."

I can't help but read this as a rearguard sop to the original conclusions of the Digital Britain Report. Once again though we have weasel words; it's all well and good to say that a measure should be 'regarded as very much a last resort' but will that be the case in practise? We lawyers are told to put our client's case at its highest; if disconnection is available, that's what we're going to be expected to push for.

"As ever we would need to ensure any such measure fully complied with both UK and EU legislation."

Well, that's all right then because we have Amendment 138 to the Telecoms Package to protect us. Except, that as the splendid and endlessly energetic Monica Horten has detailed over at IPTegrity.com, the EU Commission is trying very hard to water it down with, as Monica notes, UK Government support. In other words, the Government position is on the one hand that disconnection should be in accordance with UK and EU law, and on the other that UK and EU law should not preclude disconnection.

So where is all this coming from? A number of commentators have observed that only a few weeks ago Lord Mandelson dined with media mogul David Geffen (see this Times report from last week, which nicely anticipates today's developments). I'm not going to speculate, but it is hard to avoid the feeling that more than a little high-level lobbying may have been going on, as evidenced by that line in the new consultation document about how 'some stakeholders have argued strongly'.

As this BBC report explains, the latest proposals are causing considerable consternation, not least among the ISPs who may be forced to implement and enforce such measures, at considerable cost in time, money and in all likelihood customer satisfaction. What can we do? The Open Rights Group, for which I initially researched Amendment 138, is urging people concerned by these developments to write to their MPs. Another option comes out of the fact that, as I've noted above, this is still just a consultation. The DBIS is seeking comment on this proposal; now is the chance to make (reasoned and temperate, please) responses to it.

Cyber-Harassment: Go Directly to Jail

2009-08-22T09:57:00.004+01:00

The Guardian reports that Keeley Houghton, 18, of Malvern, has been sentenced to three months' imprisonment for threatening on her Facebook page to kill another young woman. If this sentence sounds a bit harsh for what some might take as childish invective, it was apparently the latest in a long string of instances of Houghton persecuting her victim, including incidents that had led to previous convictions for assault and criminal damage. None of the reports I can find are specific about the offence Houghton was prosecuted for, although the reference to 'Harassment' makes me suspect that the charge was under s.1 Protection from Harassment Act 1997. This requires a 'course of conduct' of two or more incidents that a reasonable person would think was harassment. The report in The Guardian indicates that Houghton had earlier harassed her victim in a pub, so two instances within a few days would certainly be a 'course of conduct' as far as the court was concerned.

This case indicates, probably unsurprisingly, that sending abusive messages on Facebook or via any other social networking site is seen no differently in the eyes of the law from verbal abuse or sending poison-pen letters. But what other legal avenues are open to prosecuting this sort of behaviour?

Another way of prosecuting harassment is under s.5 of the Public Order Act 1986, which defines the offence of causing harassment, alarm or distress. Under s.5(1)(b), an offence is committed if someone

"displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."

But it is unlikely that a posting on Facebook would be considered to be such a 'display of writing', especially considering that the Act goes on to say at s.5(2) that:

"An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling."

Blackstone's Criminal Practice notes at B11.71 that it was held in Chappell v DPP that receiving an abusive letter at home does not constitute an offence under s.5, because it falls in the exclusion under s.5(2). In the course of giving judgement, Potter J noted that had the Malicious Communications Act 1988 been in force when the acts in question had been committed, they would have certainly comprised an offence against s.1 of it, which (as now amended) provides that:

(1) Any person who sends to another person—

(a) a [letter, electronic communication or article of any description] which conveys—
(i) a message which is indecent or grossly offensive; (ii) a threat; or (iii) information which is false and known or believed to be false by the sender; or
(b) any [article or electronic communication]2 which is, in whole or part, of an indecent or grossly offensive nature,

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

This would on the fact of it seem a more fruitful option for charging someone who had made malicious Facebook posts. So, a one-off incident would probably be charged under s.1 MCA 1988, whilst repeated incidents, or one that formed part of a larger course of conduct, would be an offence under s.1 PHA 1997.

Now, it's safe to say that there is a great deal of abusive and harassing material on the Internet. Very little of it ends up in court, and such cases have often been based on defamation rather than harassment. But the impact of bullying should never be underestimated; it can and does ruin lives. Hopefully, this case will show that persistent bullying and harassment, including via online services, can and will be dealt with in the criminal courts.

What it does raise though is the question of what sort of forum such bullying can take place in. If I abuse someone in Second Life, am I harassing them or sending a malicious communication? If I build a large advertising banner in Second Life that displays abusive messages about another user, does that count under s.5 POA? Probably not, for jurisdictional reasons if nothing else, but the question of 'where' the inside of a shared world actually is crops up increasingly often in legal discussions. It's a fascinating topic, so much so that I'd be tempted to write a novel about it - except that my friend Charlie Stross has done so already.

SCRIPTed Vol 6 No 2

2009-08-22T09:21:00.002+01:00

There's a new SCRIPTed out - Volume 6 No 2 is now online, with a spread of papers coming out of the recent SCRIPTed conference on governance of new technologies. I'm very pleased to see that papers are already been picked up for wider media attention, with Daithí Mac Síthigh's article on the legal aspects of sharing broadband through wifi having been discussed by The Register and The Telecom.

The Lesser Spotted Hairy Law Clanger

2009-07-24T16:09:00.002+01:00

Depending on whether I get Pupillage, and on whether wigs kept on being worn in civil cases, this may be your one and only chance to see me with a full head of hair - even if it is courtesy of Messrs Ede and Ravenscroft!

Congratulations to my fellow BVC students who were Called yesterday - the best of luck to you all.

Machinima and the Law Podcast

2009-07-22T10:47:00.004+01:00

Machinima is the use of real-time 3D rendering software - typically that used by computer games - to make cheap but high-quality CGI movies. I recently had the pleasure of being interviewed by Hugh Hancock, leading light in the Machinima community and indeed the originator of the term, regarding the legal issues arising from it. The interview is available as a podcast from Hugh's blog (one hour, 82 MB MP3) - my thanks to him for the opportunity for a fascinating discussion!

(Despite this blog's name, the interview contains no whistling. It does contain one four-letter word, but I am repeating a quotation given by Geoffrey Robertson QC in his text Media Law, so that's all right then.)

NPG v Wikipedia

2009-07-19T19:45:00.005+01:00

It’s not often that copyright cases get into the news, although there are notable exceptions, such as Lucasfilm v Ainsworth last year, or the Harry Potter Lexicon case in the USA. But the current spat between the National Portrait Gallery and Wikipedia made the front page of the BBC news website a couple of days ago. At its heart (although there is more to it than this) is a simple copyright question: does a faithful copy of a work – in particular, a work that is now out of copyright – enjoy copyright protection in its own right?

The NPG is complaining that a Wikipedia user, Mr Coetzee, copied high-resolution images of some 3,300 paintings from its website and posted them on Wikipedia. In a letter from its solicitors it asserts that these images are all recent original photographs taken by the NPG and that the NPG therefore holds their copyright, and that Mr Coetzee has infringed this. Mr Coetzee’s position is that the paintings are out of copyright, and since the images he downloaded are quite literally copies rather than original or even transformed or derived works then there cannot be any copyright for him to have infringed.

This is an intriguing issue and for the last few days I have been discussing it with a number of my fellow volunteers for the Open Rights Group. This has been a very interesting experience, especially as several of them are considerably more qualified and experienced in IP law than I am, and I’m grateful for their agreement that I could summarise our discussion in this post. (I should add that ORG is not taking any active role in this dispute, although its legally-qualified volunteers are observing it with keen interest. Furthermore, any legal errors or misconceptions are entirely my own.)

Does the NPG have a case? It is relying on s.1 and s.4 of the Copyright, Designs and Patents Act 1988, which provides that original artistic works, including photographs, enjoy copyright protection. Of course, this leads to the question of what ‘original’ means. Every copyright course I have undertaken has stressed that in English law the originality bar is set very low indeed; in effect, if you create an artistic work such as a photograph, you automatically get copyright in it. In the case of a painting, this is undoubtedly true. It’s even true for a simple drawing; s.4 provides that copyright arises irrespective of artistic quality. It is true for a carefully composed photograph. But if artistic quality is not required, what about skill and effort? The ‘sweat of the brow’ argument, often deployed in considering literary copyright, holds that a certain minimum level of skill and effort must be expended for copyright to arise. What is not clear, particularly in respect of a photograph, is whether that skill and effort applies to all aspects of a work’s creation, or just its originality. This is particularly relevant in the NPG’s claim, as whilst it seems clear that a lot of skill and effort when into photographing its paintings, it was aimed at ensuring that the photographs were as faithful a copy of the paintings as possible – in other words, that no originality was introduced at all.

As early as 1869 it was held in Grave’s Case 4 LRQB 715 that a photograph of an engraving enjoyed copyright under the then-current legislation. However, this view has not invariably been followed; consider, for instance, the comments of Lord Oliver in Interlego v Tyco Industries [1989] AC 217:

“It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality.”

Now, this was a decision of the Privy Council, and furthermore was strictly obiter. However, it was applied in The Reject Shop Plc v Robert Manners [1995] FSR 870, which was an appeal by way of case stated from a private criminal prosecution under s.107 CDPA 1988. In considering whether copyright subsisted in an enlarged photocopy Leggat LJ held that it did not:

“The process was wholly mechanical and there is nothing to suggest that enlargement was for any purpose of that kind. There was, in short, no evidence before the magistrate of the exercise in the production of what he called the “distorted photocopies” of any relevant skill and labour whatever. It follows that the final images were not original works and so no copyright could subsist in them.”

This is what I term the ‘photocopy argument’ – that if the method of reproduction amounts in nature if not exact technique to photocopying the original artwork, then no new copyright can arise. If the NPG possessed a very large flat-bed scanner and scanned its painting, then it would be hard to argue that the resulting digital image enjoyed independent copyright. If the painting was instead photographed and the image carefully processed to even out any lighting inconsistencies and eliminate distortion, then it would in principle be identical to a scanned image. Is it significant that extra skill and effort went into its creation if the only consequence of that skill and effort was to remove any element that distinguished it from a pure mechanical copy?

The counter-argument, which was originally presented by Kevin Garnett QC in an article in the European Intellectual Property Review (EIPR 22(5) 229-237) considers a photograph of a scene in which no copyright can subsist, such as a landscape. If the photographer exercises no skill or judgement and has limited capacity even to pick a particular viewpoint, then copyright still arises. This image, taken by me from the London Eye, has not been corrected or cropped, and I did not have the option of where to take it from or even, given that I was on a timed ticket, when I took it. Hundreds of similar pictures must be taken daily. But nonetheless, my picture undoubtedly enjoys copyright. So why shouldn’t another picture of a scene without its own copyright, such as an out-of-copyright painting, not also enjoy copyright, especially if the photographer in that instance employed much more skill and effort than I did.

I think it’s fair to sum up our discussion as concluding that the matter is open. There is no recent binding authority either way, although cases such as Interlego and Reject Shop point against copyright arising. Nonetheless, arguments can be made both for and against; my own feeling is that a straightforward application of the law would support the NPG, but that a reasoned argument could well be made against it.

A complicating factor is that Mr Coetzee is not in the UK; he is, as I understand it, in the USA. A US court has ruled on this very issue, in Bridgeman Art Library v Corel Corp. There, it actually sought to apply UK law and interpreted it such that a faithful photographic copy does not enjoy copyright, a position consistent with the US approach to this issue. But if the NPG does go on to sue Mr Coetzee, it would do so in an English court, which might be influenced by Bridgeman but would be under no obligation to follow it.

The NPG makes other claims, including breach of contract, bypassing of technical protection measures and database right infringement. The first would probably run into problems of consideration (or rather lack of it), whilst the second does not seem tenable – the software used by the NPG to display hi-resolution images by increasing the resolution as you zoom in is hardly in the same league as encryption or digital watermarking. The database rights claim is less clear-cut, though.

The usual case referred to in interpreting the sui generis database right is British Horseracing Board v William Hill [2005] RPC 35. The point generally taken from this case is that significant investment in creating the database is necessary for the database right to arise. On that basis, I assumed that irrespective of the copyright point, the amount of effort put into acquiring the images of the paintings for the NPG’s database would give rise to a database right (which would almost certainly have been infringed by abstracting 3,300 entries from it.) However, a friend who manages a large commercial database reminded me when I was discussing this case that the ECJ decision that BHB is based upon also emphasised that this investment must be in the creation of the database itself. As confirmed by the Court of Appeal, the right arises where the database creator has invested effort in creation of a database of existing available data, rather than in creating or approving the data. Indeed, if the data is such that it is only available to the database creator, then the database right does not arise (see Kon and Heide, E.I.P.R. 2006, 28(1), 60-66).

And this could be a fatal hole in the NPG’s database claim. The whole basis of the NPG’s copyright argument is that it does not permit unauthorised copying of its paintings; the only body with legitimate access to the data that has gone into the NPG’s image database is the NPG itself. Nobody else is in a position to lawfully create such a database, no matter how much effort they put into doing so. On this argument, the NPG’s database does not attract database right protection.

It’s not at all clear at this stage what will happen. Mr Coetzee may well not acknowledge the claim in the hope that the NPG, even if it obtains judgment in default, may well not seek to enforce it in the US courts. But if it does come to court in England, then both the copyright and database right claims may well be a lot more open to argument than one might originally think.

Update: At TechnoLlama, Andres Guadamuz has looked in much more detail at the contract claim. I agree with him that formation is probably not in issue, but as I've noted in my comment to his post I think there are very serious problems with consideration (i.e. the NPG has received no payment or benefit from Mr Coetzee.)

More on Cameras

2009-07-07T15:02:00.003+01:00

Following up from yesterday's post, I've had some interesting and thought-provoking comments (some here, some on a personal blog where I posted a link to yesterday's entry). I thought I'd address some of the points raised.

Interpretation

This whole issue is over whether a camera would be considered to be a computer under s.3 Computer Misuse Act 1990. This is a matter of statutory interpretation, so what do the normal principles by which courts do this tell us?

The first rule of statutory interpretation is the 'Literal Rule' - words are to be taken as meaning what they say. On the one hand, this might go against taking a camera to be a computer, because on the face of it a camera is one thing and a computer is another. As I said yesterday though, whilst this might have been clear-cut when the CMA was first drafted, it is a lot less so now, and I still think a good case could be made that a literal interpretation would be by no means unambiguous.

The second rule is the 'Golden Rule' - words should not be interpreted so as to lead to an absurd result. I would submit that not to define a digital camera as a computer would lead to the absurdity that it would be permissible to delete photographs from a memory card whilst it was inside the camera, but illegal if it was removed and plugged into a PDA. Why should it be legal to do this when the card is in one gadget held by the photographer but not when it is in another?

Finally, there is the 'Mischief Rule' - where doubt remains, look at the undesirable behaviour, or 'mischief', that the law is trying to prevent. The intent of s.3 is clear: it was enacted to close a loophole in English law by which it was not an offence to damage, destroy or block access to data in circumstances where the same act in relation to a physical embodiment of that data (e.g. a tape, floppy disk or hard drive) would have constituted criminal damage or theft. Now, I think it likely that if someone insisted on pulling the film out of a camera and exposing it to the light, then this would be criminal damage, because the film would have been rendered useless and the pictures on it lost. So there is no reason why equivalent conduct with a digital camera should not be treated in the same way - the underlying mischief is the same.

Intellectual Property

Somebody asked if an action might law in respect of the IP in pictures deleted on a camera. My understanding of this, as reinforced by a quick look at Copinger and Skone James, is that no criminal or indeed civil action lies for the destruction of copyright material - only for its infringement. C&SJ goes as far as to say that outright destruction (as distinct from mutilation) does not even infringe the moral rights of the photographer, because there is no remaining mutilated image to be seen. If you could prove that an image would have had real, tangible value - for instance if you got a very newsworthy shot but a police officer forced you to delete it - then I can see that you might be able to sue for trespass and claim damages. But I don't think that IP can be of much assistance.

Other Offences

As some other readers have noted, if a security guard - who by my understanding has no rights to confiscate an item from somebody - takes or tries to take a camera, he or she stands a good chance of being liable for assault, robbery or possibly blackmail. I'd welcome comments on this.

What is a Computer?

2009-07-06T19:41:00.000+01:00

(A word of warning: more so than normal, this blog entry is my opinion, and does NOT constitute nor should be relied upon as legal advice.)

Readers might be forgiven for thinking that the answer to the question posed by the title of this entry is, quite literally, staring me in the face. Yes, I’m typing this blog on what it quite unquestionably a computer. But what else counts as a computer? A PDA? Yes, no question of it. A smartphone? Almost indisputably, especially given that my iPhone is far more powerful than many PDAs, or indeed many portable computers of only a few years ago. But what about a digital camera?

My question isn’t purely academic. As a keen photographer I’ve followed with both interest and concern the growing number of accounts of photographers being stopped and searched under anti-terror legislation, or harassed by security guards, again often on the pretext of security. A common feature of such incidents is the demand that the photographer delete images on his or her camera. And this explains my question, because I think there is a good case to be made that to do so is illegal under the Computer Misuse Act 1990.

It turns out I have company in high places in this regard. Lord Carlisle, in his 2008 annual report on the operation of the Terrorism Act 2000, notes with concern reports of the use of recent anti-terror legislation against photographers (see paras 195 to 197) and specifically comments that police officers who use force against photographers to, for instance, make them delete photographs, risk liability for both disciplinary and criminal proceedings. What I am suggesting is that irrespective of other liability under such legislation as the Police and Criminal Evidence Act 1984, the CMA may well provide specific protection to photographers.

(As an aside, there is a simple and practical approach to dealing with such incidents: comply with the demand, and then use readily-available data recovery utilities to recover the deleted files later, so long as no new pictures have been recorded on the memory card in question. But that doesn’t address what I consider to be the unjust nature of the demand in the first place.)

The relevant part of CMA 1990 is section 3, as recently amended by the Police and Justice Act 2006. S.3 provides that it is an offence for a person to, knowing that the act is unauthorised (s.3(1)(b)), prevent or hinder access to any program or data held on a computer (s.3(2)(b)). If a digital camera counts as a computer for the purposes of CMA 1990, then deleting a photograph from it would constitute preventing or hindering access to data held on it. (Even if the image was recoverable, it would still count as ‘hindering’.) The relevant questions are therefore whether a digital camera does count as a computer and whether a demand by a police officer or security guard to delete photographs is deemed to be unauthorised.

The second question is the easier one to answer. S.17(5) CMA 1990 says that access is unauthorised if it is by someone who would not be entitled to control access to that data, and who does not have the permission of someone who does. The only person entitled to control access to a computer owned by me and in my possession is me; the same applies to any device that counts as a computer for the purposes of CMA 1990.

Now, s.10 CMA 1990 does provide certain exemptions for law enforcement, and in particular it says that access by a constable or other investigating officer is not unauthorised even if done without consent. However, it very also very clearly states that this only applies to the offence created by s.1(1) CMA 1990, that of gaining unauthorised access to computer material. It does not apply to s.3. So, in the context of a camera, an officer may look at pictures stored on it in the course of a lawful search because s.10 makes such access lawful. But s.10 does not make it lawful to infringe s.3 by deleting them.

All this of course presupposes that a digital camera is a computer, at least as far as CMA 1990 is concerned. Unfortunately, whilst the Act includes a lot of other definitions, it is silent as to what a computer is; whoever drafted the act evidently thought it obvious. It probably was obvious in 1990, when even the advent of PCs had not changed the understanding that a computer was a box that you typed data into and which gave output in text or graphics on a screen or via a printer. But, as I noted earlier, today we see a much wider range of devices as being computers. As I said, my iPhone is almost certainly one by any reasonable definition. Now, it incorporates a camera (quite a good one, as I have one of the new 3GS models) and I am confident that there would be a very strong case that if anyone tried to make me delete pictures on my iPhone or attempted to do so themselves then they would be committing an offence under s.3 CMA 1990.

But the iPhone is a general-purpose device, not one dedicated to photography. (Yes, I know it’s strictly a phone. But it is really a small, powerful PDA with a phone built in, as is clear from the way Apple will sell you an iPod Touch that is almost identical but sans phone.) My Canon digital SLR is made for the sole purpose of taking photographs; it is definitely more of a camera than my iPhone, but is it also less of a computer?

How have other countries sought to define computers? Singapore’s Computer Misuse Act is closely modelled on the UK Act, but with additional explanatory material that defines a computer as

“an electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such interconnected or related devices, performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such devices, but does not include an automated typewriter or typesetter, a portable hand held calculator or other similar device which is non-programmable or which does not contain any data storage facility.”

Would this include a digital camera? It mentions both electronic and optical elements, together with data storage – all of which a digital camera possesses. The exclusions seem to me to relate to devices that cannot store data or run software. Digital cameras clearly do the former, and indeed can run software too, as is seen from the patches posted by manufacturers.

If we accept that the Singaporean definition of a computer is a reasonable one (and speaking as someone who’s been studying computers one way or another since the mid-1980s, it seems eminently sensible to me) then it is hard to avoid concluding that English law should recognise a digital camera to be a computer for the purposes of the CMA 1990. If so, then s.3 makes it an offence to delete, or seek to force someone to delete, photographs from such a camera without lawful authority, and as the s.10 exception does not apply to s.3, mere investigation does not provide such authority.

Does this mean that I think that anyone told to delete photographs should refuse to do so and cite s.3 CMA? As I said earlier, this post is not legal advice and must not be taken as such. What people do under such circumstances must be up to them; however, I feel that should a complaint about forced deletion of photographs be pursued, then the s.3 CMA aspect is at least deserving of consideration.

Libel and Science: Not Happy Bedfellows

2009-06-18T10:16:00.003+01:00

(Yes, this is my third blog entry in as many days. You might almost think I'd finished the BVC.)

Since I proclaim this to be an IP and Technology Law blog it might seem odd to talk about Libel. True, libel tends to be seen these days as part of the wider field of Media Law, itself a close cousin to IP. Nonetheless it is not an area I have taken much interest in beyond the curiosity most of us have about an area of law that positively excels in the parties being even ruder about each other than normal.

One case has changed that, however: British Chiropractic Association v Singh. As has been extensively reported, the BCA is suing science writer Simon Singh over an article he wrote for The Guardianlast year, in which he cast doubt in the strongest terms over the BCA's claim that chiropractic - a form of 'complementary medicine' that involves manipulating the spine - could help with childhood diseases such as colic. Now, I came into law from a scientific/engineering background, and perhaps rather naively I tend to assume that they way you settle scientific disputes, as distinct from ones about negligence, contracts or badly-placed hedges, is by rational argument on the basis of the evidence. The BCA beg to differ, and have sued Singh.

Why am I interested? For one thing, I enjoy Singh's writing. For another, I was at Imperial College with Singh back in the late 1980s, and although I can't say we knew one another well I'll confess to a degree of loyalty to a fellow alumnus. Above all though I consider it profoundly wrong that defamation law is being used to substitute for scientific debate.

Much, much more detail about the case than I can go into here has been posted by Jack of Kent; see his blog for updates and links to the now very extensive coverage of this issue in the wider press. I am writing this though because BCA v Singh has been an eye-opener for me as to some of the more disturbing aspects of defamation law. It is strange enough that, unlike in most other causes of action, the burden of proof lies principally on the defendant. It is even more disconcerting when that burden is pushed to almost insurmountable levels by preliminary rulings that can define the scope of the alleged libel in terms that the defendant may be wholly unable to prove. Finally, whilst all litigation can be expensive, the costs of libel cases in England can be positively ruinous; a recent study by the University of Oxford found that a libel trial in England typically costs 140 times the average cost in the rest of Europe.

Whatever the issues with libel trials in general though, it above all remains wholly inappropriate to use this cause of action to stifle scientific debate. A positively stellar list of luminaries has signed a statement to this effect; ten thousand more readers have added their names, myself amongst them. The progress of science and medicine depends on open, frank discussion of the merits and hazards of treatments, be they conventional or complementary. Seeking to suppress such discussion helps no-one.

Singh is currently seeking leave to appeal the preliminary ruling in this case. I am sure Jack of Kent will be first with news whatever happens. In the mean time I earnestly hope for an outcome that is not only good news for Singh but also good news for everyone who writes about contentious aspects of science.

Digital Britain meets Amendment 138

2009-06-17T14:17:00.004+01:00

The Government's Digital Britain report came out yesterday (download a copy from here) and has already drawn comment from several of my fellow bloggers (panGloss and Technollama in particular). Given my involvement in ORG's analysis of the Telecoms Package, my particular interest is in how far this report goes in acknowledging the concerns ORG raised, especially in relation to so-called 'Three Strikes' sanctions for alleged copyright infringement.

The first main area of interest is actually from near the end of the report. Chapter 8, on Digital Government, places great store on the extent to which essential government services will increasingly be delivered online. Indeed, the report refers to a 'Digital Switchover' of such services, akin to that already taking place for analogue broadcast. This is relevant because it emphasises just how serious a sanction disconnection from the Internet would be in such a world. As para 8.16 notes, candidates for early switchover include electoral and school registration and debt and redundancy advice; denying access to such services would very much engage human rights concerns. This may be why Chapter 4, relating to creative industries, is not as draconian as some observers may have expected; there may well be growing awareness within government that if 'digital exclusion' is seen as a social ill, it is hardly appropriate to wave it as a potential sanction.

Turning to Chapter 4, other commentators have noted that the report acknowledges rights-holder claims of economic damage through file-sharing. Having said that, it's worth noting that it does not do so uncritically - para 4.17 is careful to use qualifiers such as 'indicated' and 'claim'. Nonetheless, HMG sets out its position firmly in the next paragraph, describing online piracy as a 'serious offence' and stating that a 70-80% reduction should be the government target. It goes on to dismiss the views of the 'minority of the anarchic'; I wonder if this part of the report was written before or after the Swedish Pirate Party got their first MEP? Now, I don't agree with the PP's position, but its electoral success in Sweden (and this report harps on a lot about looking to Scandinavian and Nordic models for IPR reform) does indicate a significant degree of public unhappiness and disengagement with mainstream views of IPR, and I'm not sure such positions should be dismissed rather than engaged with.

As to practical measures, the report calls for an industry body to be set up under legislative oversight to address rights issues. This is in line with proposals in the Telecoms Package to "promote cooperation between undertakings providing electronic communications networks and/or services and the sectors interested in the promotion of lawful content in electronic communication networks and services" (in the Universal Services Directive). What about sanctions, though? Much discussion has been of the 'Three Strikes and you're Out' model proposed by the French Government under the recently-failed HADOPI legislation, that would have an escalating series of notifications and warnings upon allegation of copyright infringement culminating in disconnection. What we see in the Digital Britain report is rather different though. As per the box on page 113, following para 4.31, the proposal seems to be for notification and warning accompanied by collection of evidence to be made available via court order. One might term this 'Two Strikes, Then We Let Someone Sue You'.

The report goes on to list other sanctions that might be brought into play if this approach does not lead to the desired reduction in file-sharing. The first point is that this implies that it is anticipated that legal action will be via conventional channels and sanctions, i.e. damages where infringement is proven in court. Secondly, even the prospective future measures seem to stop short of disconnection. They included throttling, shaping and various targeted blocking approaches that seem aimed at limiting Internet access to certain sites or services rather than stopping it altogether. It's also not clear though whether these sanctions will come as the third 'strike', via court order, or as a consequence of one of the earlier warnings, at the behest of the ISP.

Now, how does this tie in with the successful campaign to save Amendment 138, the EUP-sponsored provision that would require sanctions to be in accordance with due legal process? As passed by the EUP in May, the Amendment incorporates the following text into Article 8(4)(h) of the Framework Directive:

"applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent"

As the late Professor Joad would have put it, it all depends on what you mean by "fundamental rights and freedoms of end-users". If you confine these to the right to have Internet access at all, as hinted at by Chapter 8's discussion of ubiquitous and essential digital services, then Chapter 4's proposals probably are compliant with Amendment 138. There is no suggestion that Internet access would be cut off altogether, even for the most persistent offenders (although they might be sued into penury). However, if you take a wider view, you might argue that the other sanctions discussed such as constraining or blocking certain services might well be an infringement, and given that it seems that these will be 'strike 2', at the ISP's discretion, rather than 'strike 3' after a court order, then on such an interpretation they would not be compliant with Amendment 138.

To summarise, what we have here is a report that seems to acknowledge the folly of threatening total disconnection from the Internet as a sanction for alleged rights infringement, and which puts forward proposals that would, as per Amendment 138, require a judicial ruling before opening up alleged file-sharers to serious sanctions. What is not clear, however, is whether this also applies to other technical measures such as blocking or throttling, and this is a point on which further consultation should concentrate.

Hoffman on Laddie on Trade Marks

2009-06-16T22:39:00.002+01:00

I've writter before about the legacy of Sir Hugh (formerly Mr Justice) Laddie, and his contribution to the development of IP law. This evening saw the first Sir Hugh Laddie Lecture at the Institute of Brand and Innovation Law he founded at UCL, featuring Lord Hoffman on the topic of Sir Hugh's dealings with the ECJ on the question of what exactly was the function of a trade mark.

It was a very good talk, and a fitting tribute to Sir Hugh. As Lord Hoffman readily admitted, it did not contain much in the way of radical revelation into trade mark law. Rather, he sought to trace the development of the tension between the English and European courts as to trade mark function via a series of cases in which Laddie J (as he then was) had been involved.

Now, it was clear from this that Lord Hoffman was setting out to tell us a story, and when you are being told a story it's important to bear in mind that the narrator will inevitably be imposing some sort of narrative structure and goal on it, if only to make sure that it is a story. Here, the narrative was very much the doughty English judge defending the traditional view of a trademark purely as a badge of origin against the encroaching European tide of wider trade mark function. This isn't to say that Lord Hoffman is anti-European; rather, he was to an extent telling the story of how a friend of his had done battle to preserve the understanding of what a trade mark was for that had dominated English IP law since the 1938 Trade Mark Act. That Act had made it clear that a trade mark had one role and one role alone: to indicate to a buyer where goods had originated. The 1994 Trade Mark Act, by implementing the common EC Directive on trade mark law, imported a new approach with more than a whiff of the traditional Benelux approach of viewing a trade mark as having aspects more akin to a brand.

Matters came to a head with the famous (or infamous, depending on your point of view) case of Arsenal v Reed. It was clear from Lord Hoffman's summary of the facts where his sympathies lay; as he put it, by selling scarves bearing the word (and trade mark) 'Arsenal', Mr Reed was simply saving his customers from scrawling the club's name on a blank scarf rather than asserting that his goods originated with the Gunners. Laddie J had felt much the same way, but had been obliged to refer the point to the ECJ. The A-G's Opinion had been sympathetic, and the ECJ had seemingly taken it aboard - but then found that in the current case, Mr Reed's actions in fact were trading on the reputation of Arsenal's trade mark. When the case returned to England, Laddie J promptly held that the ECJ had made a finding of fact - which was his job - and for the first and apparently only time anywhere refused to follow the ECJ. The Court of Appeal later took a rather more diplomatic (I've heard other words used) approach, and in the end Mr Reed lost. But Arsenal v Reed - along with cases on repackaging of drugs - brought home how much the 1994 Act had changed trade mark law, and how difficult it was to preserve the traditional narrow interpretation in English law of the function of a trade mark.

So what do we take from this? As I said, Lord Hoffman's narrative was clear. I can imagine of course a corresponding talk by a senior ECJ jurist taking, as its narrative thread, the steady exposure of England's old-fashioned and eccentric interpretation of what a trade mark was for in the face of sensible efforts to harmonise European law in this area. But it's hard to disagree with Lord Hoffman's closing comment that if, in implementing the Trade Marks Directive, Parliament had meant such a fundamental change away from a narrow right towards broader protection of what are in effect brands, then it should have clearly said so. All in all, an interesting and thought-provoking evening, and I hope that the Laddie Lecture goes on the way it started.

Good News on Three Strikes

2009-05-09T07:37:00.004+01:00

In one of the more pleasant surprises of the long-running saga of the updates to the EU Telecoms Package (see my earlier posts here, here and here) the EU Parliament has soundly rejected moves to strip out legal protection for users against disconnection without recourse to law. Amendment 138 is back, and more importantly has been put back by the deliberate vote of a large majority of MEPs.

More on the story from Pangloss (thanks for the kind words, but many other people did far more than me!), Technollama and Monica Horten, who provided invaluable assistance to my ORG work regarding the minutiae of EC legislative procedures.

This is not the end of the matter, or even, to quote Churchill, the beginning of the end. But with any luck it is the end of the beginning, especially if there is now wider awareness of the issues among MEPs.

SCRIPTed, Vol 6 No 1, is now online

2009-04-17T07:41:00.002+01:00

Yes, SCRIPTed, Edinburgh University's online journal of Law, Technology and Society, has reached its sixth volume, hence the cover picture. If you look hard at the top left corner of the big version, you can just see your humble scribe (look for the blue tie and thinning thatch).

Volume 6 Number 1 features another excellent set of papers and analysis pieces:

Peter S Jenkins on Virtual Worlds As A New Game Theoretic Model For International Law: The Case Of Bilateral Investment Treaties

Philip Leith and Maeve McDonagh on New Technology and Researchers’ Access to Court and Tribunal Information: the need for European analysis

Eddy D Ventose on Patent Protection for Second and Further Medical Uses Under the European Patent Convention

Nigel Waters on The APEC Asia-Pacific Privacy Initiative – A New Route To Effective Data Protection Or A Trojan Horse For Self-Regulation?

Rolf H. Weber and Romana Weber on Social Contract for the Internet Community? Historical and Philosophical Theories as Basis for the Inclusion of Civil Society in Internet Governance?

Wiebke Abel and Burkhard Schafer on The German Constitutional Court on the Right in Confidentiality and Integrity of Information Technology Systems – a case report on BVerfG, NJW 2008, 822

Daniel B. Garrie and Maureen Duffy-Lewis on Conquering the Tower of e-Discovery Babel: New Age Discovery for the 21st Century

Miranda Mowbray on The Fog over the Grimpen Mire: Cloud Computing and the Law

Herbert Zech on Nanotechnology – New Challenges for Patent Law?

plus conference reports and book reviews.

Congratulations to Wiebke, Shawn and everyone else at SCRIPTed for another excellent issue.

Amazon, Twitter, and the Gay Books Purge that Wasn't

2009-04-14T08:20:00.006+01:00

A little bit of background: over the holiday weekend, news began to spread that Amazon had done something rather odd and disturbing with many, if not most, books that dealt with lesbian, gay, bisexual or transsexual themes. They hadn't been removed from sale, but their sales rank had been suppressed. As well as being a direct indicator of a book's popularity, this is a key factor in Amazon's automated book recommendation system, so a book without a sales rank is far less likely to be offered up to potential customers. I know a few authors, and their Amazon sales rankings are something they take a keen interest in. For Amazon to remove them for a whole category of books is naturally going to concern both the authors of those books and anyone interested in that category. And when that category is LGBT books... well, you can imagine that suspicions of Agendas, or Moral Panic, or even Censorship started to circulate.

And circulate they did, thanks to Twitter. April 2009 might well go down as the month that Twitter went mainstream, firstly with The Guardian's April Fool, and then with the Twitter '#AmazonFail' tag, by which Twitter users alerted to the issue could chose to follow comments and updates about it.

(Two points here. Firstly, this highlighted for many people the power of Twitter tagging as showing a use for what is often regarded as a rather trivial medium. A Twitter tag in effect allows users to get an instant paging service on a current topic in short, bize-size form that can easily be pushed to a phone or PDA. It's an excellent way of forming an instant community-of-interest, as this example showed. Secondly, I wonder if anyone will do a study into the way that 2009 has seen '[name]gate' as the label for a scandal be supplemented by '[issue]fail' as the instant term for a controversy, at least online?)

I won't dive into discussion or explanation as it has been done far better elsewhere. US editor and blogger Patrick Nielsen Hayden has made some sensible observations (and there are a few more in the comments to that post, admittedly amidst a lot of wibble). The Seattle Post-Intelligencer blog has what seems to be credible news from sources within Amazon on what happened. But most interesting to me are the comments from tech blogger (and long-term friend) Simon Bisson on what this tells us about Amazon's infrastructure.

And what it tells us may not be good news for Amazon, or indeed its shareholders. To quote Simon:

"The simple answer is Amazon's architecture. It's highly distributed, and there's no operations team. Each component (and over 200 go into a single page) is run by its development team, of four to five people. They are responsible for its features, its development - and for making sure it runs effectively."

We had a term for this when I was in the RAF: "Spring-Loaded", as in 'crammed full of cogs and springs that will explode in a shower of little bits of brass unless the lid is screwed down very tight'. Another term is "System of systems", popular as a cool-sounding buzzword but a phrase that should strike fear into the heart of anyone who understands that ten fragile things stacked up together are in fact likely to be more, not less, delicate than one fragile thing alone.

I don't think for a second this was an evil reactionary plot by Amazon to purge itself of LGBT publications or to appease the Religious Right. Whilst that, if true, would have been very bad for Amazon's reputation, I think the actual explanation may in the long run be even worse. If it turns out that such an embarrassing incident could have arisen from a single coding error, and that Amazon's infrastructure allowed the error to pass undetected, propagate around the world and then take days to fix, then it rather makes the world's best-known online ordering brand look like a massive house of cards. At the very least, it will be an object lesson both in scalability of architectures and in corporate image management in the age of Twitter.

I look forward to the e-Commerce conference papers with interest.

Patry on Copyright

2009-04-04T10:43:00.002+01:00

No, not the six-volume epic, but rather the talk given last week in London by its author, Google's copyright counsel William Patry. As well as a comprehensive summary here - with replies to comments by Patry himself - the SCL has made the talk, together with introduction, questions and closing remarks - available for download.

I have not been shy in bemoaning the way that the digital rights dispute too often becomes a sterile shouting match between extreme positions on both sides; those who would make copyright all-encompassing and eternal against those who would do away with it altogether. I am keen to see evidence of any respectable middle ground and I think Patry lays it out very well. There is a good case for the rights of creators to be protected, but such protection must be evidence-based and economically justified. Otherwise, as Patry points out, we are at best in the realm of emotional arguments and at worst at risk of following the same ideology-breeds-policy route that has made such a mess of the global economy.

We need more articulate exponents of the middle ground. I've had to defend the very concept of intellectual property against well-meaning activists who assume that anyone connected with IP law must by definition be a copyright maximalist. This is no more true that assuming that anyone dealing with land law would advocate the banning of rights of way and other easements. Equally, not everyone who questions proposals to further extend the term of copyright is a wild-eyed IP abolitionist! Those of us who disagree with either extreme are not sitting on the fence; we're trying to take a sensible middle view. This does not mean that we imagine that we have easy solutions, for as Patry admits it will be difficult to resolve the issues arising from current IP law. But just because something is difficult does not mean that we should not attempt to think sensibly about it, or to ask that those who do make policy do so on the basis of evidence and debate, not emotion and rhetoric.

Apple DRM'ing Earphones? Maybe not.

2009-03-15T10:09:00.005Z

Apple gained a lot of positive publicity a few months ago by removing Digital Rights Management (DRM) from iTunes music. However, there's a bit of a backlash in various online geek forums over claims that the new iPod Shuffle includes a chip that uses 'DRM' to ensure that only Apple-made (or perhaps Apple-approved) headphones work with it. To put this into context, the new Shuffle has all its controls on the headphones themselves, so ordinary headphones won't work with it.

But is this really 'DRM'? It turns out that manufacturers in the US have indeed put such compatibility chips into devices and then tried to use the Digital Millennium Copyright Act (DMCA) to attack competitors who sold compatible accessories without permission. A leading example was Lexmark v Static, where Lexmark used a chip in printer cartridges to ensure that they could not be refilled and resold. However, the US courts were not sympathetic to Lexmark's claim that bypassing such protection counted as illegal circumvention under the DMCA, noting that:

"We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case"

Is Apple trying to lock in sales of headphones? It would seem unlikely that it was ignorant of the Lexmark case, and other commentators have cast doubt on the 'DRM' analysis - see some of the comments at this post.

All this applies to the US, of course. What about the EC or UK? It is hard to be sure without a more detailed legal analysis (which, sad to say, I'm a little busy for right now) but the English courts, and indeed the House of Lords, have not historically been sympathetic to attempts by original manufacturers to creatively use IP law in order to secure a monopoly in accessories and spares, most notably in Leyland v Armstrong where it was held that copyright law could not be interpreted so as to provide restrictions against spares suppliers that design law did not. Furthermore, any argument based on copyright in the chip software would presumably run into the 'emulation is not copying' decision in Navitaire v Easyjet and Nova v Mazooma.

The moral: be careful of jumping to conclusions about supposed IP-related corporate evils. After all, there are enough real examples out there that it's hardly necessary to invent more...

Fair Dealing and Unfair Suppression

2009-02-19T11:45:00.002Z

It has all been a bit quiet around here of late, thanks in most part to the distractions of the Bar Vocational Course. I’m thoroughly enjoying it, but a steady diet of opinion-writing, drafting of particulars and preparing for advocacy has rather absorbed my time of late. However, things certainly haven’t stood still in the IT law or IP worlds, and as the final stage of the course looms distantly into view it’s time to get the blogging jacket* on again.

(*A fictitious garment I imagine as being in some way akin to a smoking jacket; I welcome suggestions as to its attributes.)

Anyway, on to law. Fair use, or fair dealing as it is more properly called in the UK, has been in the news again in respect of a dispute between radio station LBC and Ben Goldacre, writer of the Bad Science column for The Guardian and author of the associated (very good) book. As recounted here Ben Goldacre took exception to a lengthy segment of LBC presenter Jeni Barnett’s show in which she uncritically trotted out just about every ridiculous and discredited claim about the alleged link between the MMR vaccine and autism. Now, when you disagree with what someone has written you can direct people to the original article and even TV and radio features are often available via iPlayer or similar ‘listen again’ services. But LBC does not, so it seems, make its programmes so available, and so in order to protect himself against accusations that he was ‘cherry-picking’ parts of the programme, Ben Goldacre posted an audio file of all 44 minutes of the discussion, out of a total of 3 hours of Jeni Barnett’s programme.

At which point, LBC’s lawyers threatened him with an action for copyright infringment.

Now, it’s not in dispute that LBC are the rightful owners of copyright in Jeni Barnett’s programme. Similarly, Mr Goldacre has clearly made available a copy of a significant part of that programme (almost a quarter of it). So his action was clear infringement – or was it?

Section 30 of the CDPA 1988 provides for fair dealing in copyright material for purposes of criticism, review or news reporting. Ben Goldacre’s comments on the MMR programme were certainly critical, but how much of the original material was he entitled to reproduce in order to criticise it? One common complaint about fair dealing laws is that they provide no hard-and-fast rule as to what comprises reasonable use, although given the enormous variety of circumstances such borrowing can take place in, it’s almost inevitable that it has to be assessed on a case-by-case basis. Rather, we have to look at judicial guidance from cases such as Hubbard v Vosper [1972] 2 QB 84, where it was held that in matters of significant public interest then there may be good justification for extensive reproduction, especially if that is the only way that the material in question can be exposed for analysis and comment. Furthermore, in Pro Sieben Media v Carlton [1999] 1 WLR 605 the Court of Appeal held that for matters of ongoing public concern any journalistic coverage, not just pure ‘news’, may comprise reporting for the purposes of s.30 fair dealing.

Under the circumstances, where Ben Goldacre had no text or copy of the MMR segment of the programme to refer readers to, where he reasonably sought to avoid accusations of selective quotation, and where he had serious and detailed critical comment on virtually every aspect of the material in question, it seems to me that he would have had a very strong case indeed for asserting fair dealing.

As noted in this OUT-LAW podcast on the subject though, we’ll never know as Ben Goldacre has taken down the recording on the basis that he cannot afford to test the issue in court. This is understandable but unfortunate, as it means we will have to wait either for someone to be in a position to defend a test case or for legislative clarification (and given that there has just been a round of reviews of copyright exemptions, I don’t expect another one any time soon). But LBC’s victory has been an extremely hollow one, for, as described here, this row brought more publicity to a matter LBC likely wanted buried than Ben Goldacre could ever have hoped to achieve if LBC had ignored the matter. Copies and transcripts of the item abound (go and have a look, unless you suffer from high blood pressure; this level of wilfully wrong-headed arrogant ignorance is breathtaking.) To quote Robert Walker LJ in the Pro Sieben case, “an author's remedy for malicious and unjustified criticism lies (if it lies anywhere) in the law of defamation, not copyright.” To which I would add that in today’s world of blogs, wikis and torrents, attempts to suppress criticism via copyright action are all too likely to rebound, as LBC has just found out.

Sir Hugh Laddie, 1946-2008

2008-12-02T20:54:00.002Z

Like many students and practitioners of intellectual property law, I am deeply saddened to learn of the death of Sir Hugh Laddie, formerly Mr Justice Laddie and one of the most influential IP judges of the last few decades. I was tempted to write a more lengthy review of his life, but I see that William Patry has temporarily returned from his blog exile to post a more fulsome and heartfelt tribute than I could ever manage.

I will, however, add a personal note. I became interested in law through supporting my wife in a court case over a very messy inheritance dispute. Such cases, especially where the estate is substantial, are tried by Chancery Division judges of the High Court, the branch of the judiciary that includes the Patent Court and its judges. So, as it happened, the judge who heard our case was none other than Mr Justice Laddie. I was later to read that one of the reasons he resigned from the bench was his discomfort at hearing cases outside what he felt to be his area of specialist expertise. If that was the case here then he showed no sign of it; indeed, as the central legal issue (undue influence) was one where the law is simple but weighing of the evidence is paramount, his incisive mind and firm grip upon proceedings served him well. As, for that matter, did his sense of humour during what was at times a distressing and unpleasant case for all concerned. (I fondly recall his anecdote to counsel regarding the difference between dementia and that common condition, 'male middle-aged inattention'.)

We won our case. It feels odd to say that I am grateful to Sir Hugh for that, as I feel we won because our cause was right. But I am grateful to him for approaching it in a manner that did full justice to our cause, and for igniting in me the spark of interest that led me to start studying law. As my technical background led me to IP, I soon discovered his wider claim to fame. But I'll always remember him best for his decision in Bradshaw v Hardcastle [2002] EWHC 2816 (QB).

The Telecoms Package: What Now and Where Next?

2008-11-28T14:12:00.003Z

Following on from my previous post about the EU Telecoms Package, the vote in question took place this morning. Monica Horten, who is far more au fait with the minutiae of EU legislative procedure than I am, has given a very good write-up of what happened.

So, this isn't the end of the process. We now have the Council's view of what the Telecoms Package should be, as well as the Commission's view and the EU Parliament's view. All three bodies will now have to try to hammer out a compromise, and it's clear from Monica's report that there is much unease at the Council (i.e. national) as well as Parliament (direct representatives) level as to the way in which both Amendment 138 and its sibling Amendment 166 - which was dropped by the Council some time back - have been expunged. As I noted earlier, Recital 14a remains in the Universal Service Directive to urge proper due process via national legal systems, so with any luck questions will be asked as to why, if the Council is content to leave it in, there isn't some accompanying Article to ensure compliance with it?

As I see it, there are definitely further opportunities for lobbying and action. The Telecoms Package will have to finish its passage through the EU legislative process - Monica suggests this will probably be over the next few months - and the resulting amended Directives will have to be transposed into UK law over the subsequent two or three years. Our MEPs, MPs and Ministers are not off the hook yet.

Whatever Happened to Amendment 138?

2008-11-26T09:20:00.003Z

A couple of weeks ago I posted about my pro bono project for the Open Rights Group, analysing proposed changes to EU Telecoms law that might allow a 'Three Strikes' sanction against alleged file-sharers without recourse to due process of law. As became clear in preparing our final report, a key measure was Amendment 138, inserted by the EU Parliament in an effort to apply the rule of law to such measures. The EU Council is voting tomorrow on the Telecoms Package, but confusion has now arisen about whether Amendment 138 is still in play. What seems to have happened is that there has (in true EU style) been a lot of horse-trading going on as to the final text of the Telecoms Package that the EU Council is going to vote on tomorrow.

It's worth remembering that EU legislation is made in a complex and not very transparent way and that voting by MEPs in the EU Parliament is only part of the process. The final vote at the EU Council is by representatives of member state governments, all of which have their own agendas. Furthermore, it's not as if individual elements such as Amendment 138 get voted on line-by-line; instead, the final text (including amendments made by the EU Parliament) is argued over behind closed doors before a compromise is voted on by the Council. If you think this bears more resemblance to trying to pass a rule change through your local football club committee than getting a Bill through Parliament, you might not be wrong.

Looking at the final versions of the five amended EU Directives that form the Telecoms Package, it seems that yes, Amendment 138 (which made sanctions against 'unlawful content' subject to due process of law) has indeed disappeared. But so have some elements of another part of the Package that said that national telecoms regulators should regulate lawful and unlawful content. What was particularly worrying about those provisions was that they referred to another part of the Package that mandated co-operation between national regulators and telecoms industry providers - i.e. ISPs and the big telecoms carriers.

So, what we were looking at until now was a set of provisions buried within the Telecoms Package that said:

a) National regulators must promote lawful content.
b) National regulators must co-operate with ISPs.
c) Measures to do this must be by due process of law. (Amendment 138)

In the latest version, (c) is gone - but so is (a), leaving (b) more as a general mandate that regulators and the telecoms industry must work together, but not with a set 'stop unlawful content' agenda. In fact, the end result of the latest round of changes is to put much of the underlying legislation back to its current state, as first passed in 2002.

So does the Telecoms Package say anything at all now about due process? Actually, yes. At this point it should be noted that EU Directives work not by making law directly (well, not generally, but for EU law experts I am simplifying here) but instead by giving a template that each member state must then turn into national law. It does this by means of Articles, which must be turned straight into local law, and Recitals, which are more like explanatory notes of what the new law is meant to do. In theory a Directive should contain a list of Recitals explaining what the Directive is trying to do, followed by a set of Articles that lay down the laws to be made that will do it.

Here though, the relevant Articles have been amended or deleted so there is no specific one saying 'make a law guaranteeing due process for telecoms disconnection'. But the related Recital, inserted by the EU Parliament, is still there:

"In the absence of relevant rules of Community law, content, applications and services are deemed lawful or harmful in accordance with national substantive and procedural law. It is a task for the relevant authorities of the Member States, not for providers of electronic communications networks or services, to decide, in accordance with due process, whether content, applications or services are lawful or harmful or not."

In other words, EU member states, when implementing the Telecoms Package, are strongly guided to do so in a way that relies on the rule of law and due process rather than delegating the whole thing to ISPs.

Where are we left after all this? If the current Telecoms Package passes on Thursday, it will have the desired safeguards removed, but it will also be rather watered-down. Instead of clearly laying down a Three Strikes policy, it now gives guidance to say that such measures must be subject to due process. Now this won't on the face of it stop a particular country from passing its own Three Strikes law if it wants to, although it will give a heavy hint that any such law must allow for due process. My own opinion is that the Three Strikes battle hasn't been won or lost this week - instead it's been moved to each EU member state to be fought locally.

But what this whole mess does highlight is the very opaque and convoluted process by which EU law is made. The EU is often described as suffering from a 'Democratic Deficit', with law-making processes that, as I noted above, more resemble those of a club than a nation. Given that the EU started out as a club, albeit of countries, that is not surprising - but if it is now acting like a super-state setting telecoms laws governing the net access of half a billion people, is this really a good way to carry on?

Finally, I'd like to thank Monica Horten at IPtegrity.com for essential and insightful analysis of the latest changes.

The Onward March of Technology...

2008-11-24T14:40:00.002Z

... applies even to misconduct in the jury room. Ouija boards (as in R v Young (Stephen) [1995] QB 324) are clearly old hat, as the lazy or delinquent juror now has recourse to Facebook.

Leaving aside the fact that this person now faces the prospect of being charged with Contempt of Court, this once again highlights the way in which Facebook is so often used without any regard to the privacy settings available. My friend Pangloss has many a time lamented the way in which students in particular post all manner of personal details to social networking sites without considering who might see them - either now, or down the road when they're looking for jobs, and prospective employers are liable to make use of Google.

But what happens if and when we have security-conscious web users and genuinely anonymous net access? The current laws on jury process evolved when the only opportunity a juror had to seek outside advice was to go down the pub. How well will they work when user randomjuror53234 posts a query on an anonymised discussion board?

Caught in the Middle

2008-11-17T12:57:00.003Z

via The Register - which runs the story under the by-line 'Magazine faces legal action for bowing to legal action' - news of how The New Statesman is being threatened with a libel suit via whistle-blowing site Wikileaks for removing, under legal threat, a link to a WikiLeaks article.

This sounds a rather odd course of action to me. For starters, removing a link to a story is a long way short of saying, or even clearly implying, that it is inaccurate. Furthermore, The New Statesman was presumably acting under legal advice and quite possibly in response to an interim injunction, in which case it would have been anything from inadvisable to illegal for it not to take down the link.

If Wikileaks does file a claim, I can see another court hearing coming up - an application for summary judgment and/or striking out.

Opening Up the Telecoms Package for the Open Rights Group

2008-11-14T06:54:00.005Z

My posting record has continued to be a bit thin of late thanks to the pressures of the Bar Vocational Course. (And if you're reading this in the UK, BBC 2's new series 'The Barristers' starts tonight, featuring the joys of the BVC). However, part of my work of late has been a pro bono project that came my way from the Open Rights Group, via Prof Lilian Edwards (aka Pangloss).

Detailed accounts of the background are given by ORG here and Prof Edwards here, but in a nutshell I was asked to review the latest batch of amendments to the core group of Directives governing EU telecoms law. In particular, my remit was to see what had happened to measures inserted by MEPs to ensure that disconnection sanctions - the so-called 'Three Strikes' measures - could only be implemented via due process of law. I was very helpfully assisted by Monica Horten of IpTegrity.com, whilst Judith Rauhofer at UCLAN provided useful advice and of course Prof Edwards oversaw the whole effort; I'm especially grateful to her for comments on the text as it developed and for putting together a very clear and forceful summary for our final report.

Our findings? Yes, there are elements of the Telecoms Package as it stands that raise serious concerns. In particular, some of the measures explicitly inserted by MEPs to ensure due process have disappeared, although it does seem that there are efforts being made to keep at least one in place. Also, some of the definitions of the sort of content or threat that would give grounds for communications providers to read traffic (with associated privacy concerns) are potentially very broad.

I feel I should make my own position clear. As an aspiring IP lawyer I think that copyright protection is a good thing - so long as it is properly regulated, clear in scope and applied under the aegis of the courts. To take an analogy with land law, the law of 'real' property, we regulate land ownership under a system that protects land-owners whilst at the same time recognising rights-of-way, providing for boundary disputes and setting legal constraints on how we deal with land-owners. I don't agree with those who scoff at the whole idea of IP, any more than I'd go along with ideas to allow anyone to do what they wanted on anyone else's land. But equally, nor would I support a proposal to allow large land-owners to take over all responsibility for controlling access to their estates, including the power to decide for themselves if a right-of-way or easement existed and to eject with extreme force anyone they considered might be trespassing. The proposed measures could well lead to providers flagging legitimate peer-to-peer filesharing or fair-dealing use of copyright material as being illicit, whilst denying those affected recourse to the courts to prove their legal rights.

From here on, it's over to the ORG to take this matter forward, and I return to the more mainstream BVC joys of the Civil Procedure Rules, sentencing policy and drafting Particulars of Claim. Oh, and with any luck maybe even posting some IP and technology law stories here - there have certainly been plenty of interest lately. But this has been a fascinating project to be involved with, as well as providing an at times alarming insight into the process by which EU law is made.

Rebel Without A Trade Mark

2008-10-22T22:43:00.003+01:00

I have to take my hat off to the US Bureau of Alcohol, Tobacco and Firearms (as the old joke goes, it sounds like one heck of a fun corner shop) for its efforts to push IP law in bold new directions by seizing the registered trade mark of a biker gang.

“In addition to pursuing the criminal charges set forth in the indictment, for the first time ever, we are seeking to forfeit the intellectual property of a gang,” said United States Attorney Thomas P. O’Brien. “The name ‘Mongols,’ which is part of the gang’s ‘patch’ that members wear on their motorcycle jackets, was trademarked by the gang. ... If the court grants our request for this order, then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back.”

Of course, US trade mark law is rather different from that in Europe. I can already see the spectre of Arsenal v Reed rising like, er, a rather naff example of biker jacket art, waving the banner of 'badges of affiliation'. After all, exactly what 'service' is a biker gang's logo being used in connection with? And is it in the course of trade?

But Service in Person is still far more satisfying

2008-09-29T11:20:00.008+01:00

The latest amendment to the Civil Procedure Rules comes into effect on Wednesday, and amongst other changes the legal system has acknowledged the White Heat of Technology and recognised that SMTP packets travel slightly faster than First Class mail. Current CPR 6.7(1), which says that for electronic methods other than fax, service ~~of a claim~~ is deemed to have taken place on 'The second day after the day on which it is transmitted' is to be replaced EDIT: for a document other than a claim form by new CPR 6.26, which defines service as taking place:

'If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent..'

- in other words, the same as the rule for fax transmissions. Actually, on careful inspection I see that the fax rule has itself been updated to say that service happens on the same day if fax transmission is completed by 4.30p.m. So, if your accompanying Particulars of Claim are 43 pages long, don't send the trainee to the fax at 4.28...

UPDATE On a more careful read-through I see that the CPR amendment splits out service of Claim Forms from service of other documents. The above rule applies to documents other than claim forms; the revised rules for claim forms themselves actually slow down service, by applying the 'second business day' rule to all forms of service!

Why Not To Buy www.lloydstsbbarclaysrbsabbey.com

2008-09-17T20:11:00.006+01:00

This BBC report notes how the sudden round of shotgun marriages in the banking and investment world has led some crafty individuals to register domains such as lloydstsbhbos.com and barclayslehman.com, presumably in the expectation that the post-merger banks - assuming that they are called that - will then have no choice but to pay whatever is asked in order to have a suitable domain name.

Funnily enough, this has been tried before. Many, many times; indeed, this particular scam predates the spread of the Internet. In Glaxo plc v Glaxowellcome Ltd [1996] FSR 388, a couple of company registration agents noted the announced merger of Glaxo and Wellcome and registered 'Glaxowellcome Ltd' as a company name, which they then offered to sell to Glaxo. Glaxo were unamused and sued successfully for passing off. As Lightman J put it:

"The court will not countenance any such pre-emptive strike of registering companies with names where others have the goodwill in those names, and the registering party then demanding a price for changing the names. It is an abuse of the system of registration of companies' names. The right to choose the name with which a company is registered is not given for that purpose."

The concept that such an abusive registration was an 'instrument of fraud' was seized on with enthusiasm by courts when looking at domain name hijacking, as in the leading case of British Telecom v One In A Million [1998] 4 All ER 476. Moreover, as resolution of domain name disputes has shifted from courts to ICANN-mandated resolution panels, such tribunals have readily adopted the doctrine that such pre-emptive registrations are abusive, as in America Online v Chris Hoffman, where the announced merger of Time Warner and AOL led the defendant to register timeforaol.com and other such domains.

Indeed, since the terms of service of domain name registrars invariably include a condition that any dispute is resolved under the ICANN Uniform Domain Name Dispute Resolution Policy, anyone trying this trick is unlikely to even have the chance to argue in court. Instead, they'll have to go to an ICANN-approved tribunal that is, on the evidence of AOL and similar decisions, likely to take such registration as prima facie abusive.

So, I wouldn't bid on www.barclayslehman.com if I were you. It's likely to be an even worse investment than Lehman stock turned out to be...

EDIT: I commented on this on BoingBoing when it linked to a similar story. I am indebted to BB user Tubman for pointing out that the value of such speculative sites these days rests on the advertising opportunities they provide. Even if (for example) www.lloyds-tsb-hbos.co.uk is doomed to be taken down, it might generate a lot of ad revenue on the way. So maybe such sites are a better bet than I thought - especially now that shorting bank stocks has been banned! In broader terms, this is an excellent example of how the dynamics of e-commerce can change, with measures aimed at protecting the long-term value of a domain becoming irrelevant in the face of its short-term earning potential.

It's The Data Protection Act, not the Say Nothing To Anyone Act

2008-09-07T13:10:00.004+01:00

If you were thinking it had become a little quiet around here then you were right - I've spent the last week in the induction phase of the Bar Vocational Course. After a year doing an LLM that was concerned with specific areas of almost entirely civil law I am having to revisit the whole wider legal spectrum, including that 'criminal' stuff I dimly remember from W201. However, this doesn't mean any less interest in lawblogging on IT and IP law; to the contrary, I am keen to keep myself abreast of my intending area of specialisation.

Something that did catch my eye last week was this story on how Marks & Spencer claimed that the Data Protection Act meant that it could not talk to the mother of a child who had received a defective Superman costume as a gift and insisted on speaking directly to the seven-year-old boy himself. As this item in The Times notes, this is just the latest in a depressingly long line of examples of how the DPA is being misinterpreted and overzealously applied whilst agencies of HM Government - who really should be applying its requirements stringently - repeatedly mislay vast swathes of sensitive personal data. For my part, I would go further; it is hard to avoid the suspicion that the DPA is being invoked to excuse laziness, conceal incompetence and in some cases to indulge in pure administrative bloody-mindedness. In one instance I'm personally aware of, a building management company refused to release financial records on income and expenditure on the grounds of 'data protection' despite the clear statutory requirements of ss.21-22 Landlord and Tenant Act 1985 to do so. In the M&S case, surely common sense should have dictated that the parent or guardian of a minor is the appropriate person to speak to? But no, the bogeyman of Data Protection is offered up instead.

In wider terms, this is symptomatic of a worrying tendency (I almost said 'trend', but I suspect it has long been thus) for people to assume that, because they are dimly aware that a certain area is regulated by law, any conduct impinging on that area is forbidden. The more that the legal regulation is publicised, the more prevalent and extensive this assumption becomes. We see this in the vexed issue of public photography, where anti-terrorism campaigns and hysterical news coverage have had the (I hope) unintended effect of convincing security guards and members of the public that anyone with a moderately decent camera is either a terrorist or a paedophile. Unfortunately, this suggests that the more we see of well-justified news stories about data protection failings, the more we might hear of shop assistants invoking the DPA.

Trade Mark Law: It's bigger on the inside

2008-08-28T22:37:00.005+01:00

Most law students have probably had the experience of explaining at a party what it is they're studying only to receive in response a pregnant pause followed by the inevitable "I've got this problem with my fence..." Actually, in my case, the fence query was from my mother, although I was able to sort it out. To be honest I don't mind this sort of thing, as long as the people who ask for my thoughts understand that I can't offer them Actual Legal Advice. Sometimes, it can make you look up an unusual or interesting bit of law, and there's nothing better for helping you to understand a legal point than to try applying it to real facts. And, now that I've been studying IP law, my friends have started to cotton on to the fact that there's someone whose ear they can bend for questions on funny points of copyright, patent or trade mark law.

The latest such query came from Ben Jeapes, science fiction author and Thoroughly Nice Chap. (Do go and buy his books.) A little while back Ben was wandering through a well-known London toy store when he noticed, amidst the model railway toys, this item for sale. "Ah," I can hear you thinking, "whilst on the face of it just a piece of period street furniture, this no doubt came to Mr Jeapes' attention because, as one of those 'sci-fi geeks' he saw it an immediately thought 'TARDIS'." Well, as it happens, no such thought was required, for Ben informs me that WKLTS had helpfully labelled as follows:

And this is where Ben's interest was piqued, because (as one of those 'sci-fi geeks') he recalled that the BBC had registered as a trade mark not only the term TARDIS but also the three-dimensional shape of a traditional police box. Indeed, this registration attracted some publicity when it was opposed by the Metropolitan Police. In the event, the Trade Marks Registrar found for the BBC, holding that the police box was not unique to the Met not particularly associated with the services it offered (see here for a PDF of the decision.) So, he asked me, are either Hornby or WKLTS infringing the BBC's trade mark?

At first sight, it is true that by selling a police box when said item is now a trade mark of the BBC both Hornby and WKLTS would infringe the BBC's rights. The BBC has registered the police box as a trade mark in the category of toys, and the model police box is selling an object that is exactly the same as the trade mark in the same category of goods.

But it's not as simple as that. A little while back the European Court of Justice was asked to rule in the German case of Opel v Autec. Autec sold detailed scale model cars, one of which was a replica of an Opel Astra. Being a detailed model, it naturally sported the Opel 'blitz' logo, which is one of Opel's trade marks. Opel had, as it happened, registered the mark for toys as well as actual cars, and sued Autec for trade mark infringement. The ECJ held that anyone buying the model car would naturally hold that the Opel logo was there for verisimilitude rather than to indicate any business connection between Opel and Autec, and so the trade mark was not being used as a trade mark. To hold otherwise would be to give Opel a monopoly in selling models of their cars, which would be anti-competitive.

Now, how far does this apply with the police box? There is a key difference, in that Opel's main business was selling cars, not models of cars, whereas one of the BBC's main businesses is in merchandising, which includes selling models of the TARDIS. On the other hand, Hornby has a completely legitimate business in selling accessories for model railways, in the same way that Autec had legitimate business selling model cars. I would suggest that following Opel v Autec, the courts would side with Hornby in any simple case of alleged trade mark infringement.

At this point I will note that Hornby itself appears to quite scrupulously market the model as purely a model of a police box; it is WKLTS that seems to have added the TARDIS reference. And it may be that WKLTS has muddied the water slightly by advertising the model as also being suitable to be a TARDIS. This might seriously dent any defence of legitimately selling an accurate model of just a police box. TARDIS as a word is also a BBC trade mark, and so its use in connection with sale of toys would almost certainly be a trade mark infringement in its own right. It might also open WKLTS up to a claim for passing off, because the BBC could claim that it enjoys goodwill in the name 'TARDIS' which WKLTS was misleading customers into thinking extended to its goods. However, the BBC would have to show evidence that its own sales of model TARDISes had suffered as a result, and that customers had bought this model from WKLTS believing that it was licensed by the BBC. Given that this model is about an inch tall and costs £4, I suspect that Dr Who enthusiasts will probably want a bit more bang for their buck (unless they are keen to construct scale dioramas of ~~Home Counties chalk pits~~ alien planets).

Now it may well be that this has in fact all been cleared with the BBC, although I would have thought that if this was the case then the BBC would have asked WKLTS to add a note to the effect that "TARDIS is a trade mark of the British Broadcasting Corporation." But it does raise an interesting point of when use of a trade mark is 'use in the trade mark sense'. Is this just use of a trade mark as a form of identification, as in R v Johnstone? To me, the facts seem rather different. In Johnstone, the CDs at stake were unidentifiable without having the (trade mark) names of the relevant artists affixed to them. But anyone who wants to buy a model TARDIS knows what one looks like - there's no need to identify a model police box as a TARDIS by labelling it for such a customer to know what it is.

Anyway, that's enough wibbling on the subject. If I'm not careful, readers will conclude that I only ever blog about sf-related IP cases, and my interests are slightly broader than that...

IBIL Event 11 November

2008-08-25T10:39:00.003+01:00

A few months ago I had the pleasure of attending the inaugural event for UCL's Institute of Brand and Innovation Law, which featured such IP luminaries as Lord Justice Jacob, talking about Actavis v Merck and Geoffrey Hobbs QC, discussing the O2 'bubbles' case. IBIL has now announced another seminar, this time on the topic of patent enforcement:

Patent Enforcement - Problems and Possibilities

It is to take place from 4-7pm on Tuesday 11th November, at the UCL Institute of Child Health, just south of Coram's Fields. Registration is free, although places are limited so sign up soon.

"... yet someone is clearly doing their job horribly wrong."

2008-08-15T18:31:00.004+01:00

A little quiet here on the blog as I am currently head-down in my LLM dissertation, on the topic of the IP issues arising from the development of low-cost rapid prototyping machines such as the RepRap. But to follow up my last post I am pleased to say that the latest issue of SCRIPTed is now available, again featuring papers on topics as diverse as social pressures on medical ethics in Korea to the privacy issues arising from state access to the location data produced by devices such as mobile phones.

In the mean time, if you haven't come across the webcomic xkcd then I'd recommend checking it out. Usually very humorous for those of a slightly geeky disposition, it quite often excels itself in commenting on our information society, such as this splendid Map of Web 2.0. Today is no exception, as xkcd beautifully illustrates Bruce Schneier's aphorism that security is not a product, it's a state of mind:

(Link to original)

A Couple of Plugs

2008-08-11T13:16:00.000+01:00

No, not the plugs in Amp v Utilux (I had to sneak a design law case reference in here somewhere!) Rather, I'd like to draw readers' attention both to SCRIPTed and to the forthcoming SCRIPTed Conference in Edinburgh.

SCRIPTed describes itself as 'a journal of Law, Technology and Society'. Having been privileged to serve as one of its editors over the last year, I think it fair to say that it covers these bases very well. The most recent issue (Vol 5 No 1) includes papers on trade mark dilution, user attitudes to P2P services and the ethical issues surrounding 'bionic' athletes. We are interested in prospective contributions for SCRIPTed, and we are also keen to hear from suitably-qualified referees to help peer-review submissions.

Not content with running a journal, our managing committee are organising the SCRIPTed Conference, to take place at the University of Edinburgh from 29-31 March 2009. Taking as its theme 'the Governance of New Technologies', it will focus on evolving and emerging technologies and new-technology-driven practices and their impact on the overlapping fields of healthcare, information technology and intellectual property. The Call for Papers is open until 15 November, whilst an outline programme is available. So, why not make a date in your diaries for what promises to be a fascinating and enjoyable three days in the beautiful city of Edinburgh?

Computer Says Yes, Mr Bin Laden - have a nice trip!

2008-08-06T09:20:00.003+01:00

To err is human, goes the saying, but to really make a mess of things requires a computer. Yet everyday experience suggests that we tend to be remarkably trusting of the output of computers - perhaps the most common recent example being the stories of drivers cheerfully following GPS directions the wrong way up one-way streets, or even through floods or onto railway tracks.

All of which makes this story in The Times about cloning of electronic passports all the more worrying. E-passports have been held up as the gold standard of travel security (despite the loudly-voiced concerns of security experts) and there is a risk that airport check-in or security staff, faced with a suspect traveller, will see an e-passport as an unquestionable confirmation of identity. We may laugh at the stereotype of someone who abdicates all responsibility to a computer, but should we be more worried when the response is not "computer says no" but "computer says yes"?

A Lost Voice of Reason

2008-08-05T13:24:00.003+01:00

I'm very saddened to see that William Patry has decided to close his long-running and very highly regarded copyright blog. Even more depressing are the two main reasons he gives for doing so: that the copyright system has become so overwhelmed by the interests of massive corporate rightsholders as to in his view leave it beyond hope of repair; and that it had become impossible for him to present his own views without them being assumed to be those of Google, his current employer.

More and more, any discussion of copyright seems polarised between ever more extremist positions, with those on one side demanding ever wider and more prolonged protection for anything that can be shoehorned within the confines of 'intellectual property' and those on the other for whom "information wants to be free" has become a mantra to be recited in the face of any suggestion that artists should be able to benefit from their creativity. More than once I have had to explain that just because I am an aspiring IP lawyer it does not mean that I favour unlimited expansion of copyright any more than someone wanting to practise land law would necessarily want to abolish rights of way and enact a right to shoot trespassers on sight. We need IP centrists like Patry to point out that there is a sensible middle ground - even if we seem to be ever more losing sight of it.

I see that many of the people commenting on Patry's final post have implored him to at least make the archives available in some form (he has currently removed them because of what he sees as the ongoing problem of having his opinions cited as those of Google). I've added my voice to this plea; this is too deep a well of good sense to be filled in forever.

Lucasfilm v Ainsworth: The Copyright is not strong in this one...

2008-07-31T22:27:00.000+01:00

A few months ago I found myself lucky enough to be able to attend several days of the argument in the copyright case of Lucasfilm v Ainsworth. Cases are often known colloquially by their subject matter (e.g. Jif Lemon); if that happens here, it will go down as the Stormtrooper Armour case. Today, Mr Justice Mann gave the long-awaited judgment, and I was again able to be in court to hear him give a very brief summary.

The full version is available here; I was lucky enough to pick up one of the copies printed out for media and the public (I got the last one) and it's about half an inch thick. In great detail, Mr Justice Mann goes into the question of whether prop-maker Mr Andrew Ainsworth infringed Lucasfilm's rights by making and selling copies of the Imperial Stormtrooper helmets and armour from Star Wars, items he had made for the original film production.

So who won? Think of the end of The Empire Strikes Back; neither side has exactly come out with what it wanted, and everything has been set up for a sequel. Lucasfilm will have been hoping either for a decision that it could sue for all of Mr Ainsworth's production as infringing their copyright under English law, or for the Court to hold that it could enforce the very punitive US judgment it obtained in Ainsworth's absence. It got neither, as Mann J held that Ainsworth's activities in the UK had not been infringing, and that Ainsworth did not have sufficient 'presence' in the US for a court there to have authority over his activities.

But Ainsworth hasn't got what he will have wanted either. To begin with, Mr Justice Mann had decided, as I'll explain below, that under English law there was simply no copyright in the costume designs at all. Whilst this got Ainsworth off the copyright infringement claim (you can't infringe copyright if it doesn't exist) it also meant that his claim to have rights in the costumes equally evaporated. But Mann J went on to note that even if copyright had existed, Ainsworth's legal obligations would have meant that such rights belonged to Lucasfilm, not him. Indeed, on the basis of the evidence presented, he felt that Ainsworth had very much exaggerated the scope of his creative input, and that relatively little of the design had been his. It has to be said that Mr Ainsworth does not come out of the judgment looking too good; although the judge did not see him as dishonest as such, he found that he was very prone to overstate his contribution to Star Wars, even to the point of trying to allege that plain evidence to the contrary had been faked.

Most importantly for Ainsworth though, Mann J decided that he could be held liable for copyright infringement under US law, specifically by making items that copied drawings (the design art) that were protected by US copyright. This might seem odd, and perhaps even alarming. But the judge gave long and carefully-argued reasons for why, in this particular instance, a US claimant could ask an English court to apply US law. As well as technical arguments relating to international recognition of copyright, there was also the point that Ainsworth had copied items and sold them into the US whilst refusing to submit himself to the jurisdiction of the US courts. Having decided that Ainsworth could not be forced to submit to that jurisdiction even though he traded with it, Mann J felt that he could not then reasonably object to its claim being heard in the English courts. And, US copyright law differing in some key respects from English copyright law, Ainsworth had infringed US copyright. This leaves him facing a further hearing to decide what remedy an English court can or should impose, and this is a subject I can only speculate on. Will damages be assessed on English principles, in proportion to the actual value of infringing goods, or much more punitive US ones? And will they be based on the total scale of infringement, or just Ainsworth's sales into the US? (For the record, I had earlier been under the impression that those were in the £100,000s; it turns out they were more like £8,000 to £25,000.) Thus Mr Ainsworth is still left with a large and undetermined liability hanging over him, not to mention the question of how to allocate the costs of what was in the end a seventeen-day trial in the High Court with leading counsel and numerous specialist witnesses. Extrapolating from other such trials, I would be very surprised if the costs came to less than £500,000 if not twice that, so even if it is held that both sides did equally well and bear their own costs, Mr Ainsworth will have a huge legal bill.

And it doesn't end here. Both sides will want to appeal; Lucasfilm against the decisions on copyright and enforceability of the US judgment, Ainsworth against the decision that he is liable under US copyright law. If permission to appeal is granted - and the legal issues are controversial enough that I would be astonished if it is not - then we are unlikely to see a hearing until the middle of 2009 or so. And the case might even go to the House of Lords, or the new UK Supreme Court as it will then be. Like the Star Wars franchise itself, we have more yet to come.

So what does this case do for copyright law in the UK? (It was an English High Court case, but generally the Scottish Court of Session follows the English courts in decisions on interpretation of UK-wide copyright and IP law.) Actually, it is quite interesting and helpful, and to see why we can look at why Mr Justice Mann found that Ainsworth had not infringed copyright in UK law.

The first issue was whether or not the key items, the Stormtrooper helmets, were subject to copyright. In UK law, there are four categories of copyright: literary, dramatic, musical and artistic. Artistic copyright is itself divided into various sub-categories, such as paintings, photographs and, more relevant here, sculptures and a catch-all class known as 'works of artistic craftsmanship' or WACs. For copyright to subsist in the helmets, they either had to be sculptures or WACs; this led Mann J to a lengthy assessment of the history of the relevant legislation and the not always helpful decisions in previous cases. Mindful perhaps that such prior cases had left later judges (not to mention law students such as me) scratching their heads to make sense of what a 'sculpture' is in the eyes of the law, he sought to give a comprehensive and hopefully definitive analysis. which occupies paras 94-123 of his judgment. His final test is given at para 118; to summarise it, the key factor is that visual appeal in its own right be a primary consideration of the creator. To quote a memorable example he gives,

"A pile of bricks, temporarily on display at the Tate Modern for 2 weeks, is plainly capable of being a sculpture. The identical pile of bricks dumped at the end of my driveway for 2 weeks preparatory to a building project is equally plainly not. One asks why there is that difference, and the answer lies, in my view, in having regard to its purpose. One is created by the hand of an artist, for artistic purposes, and the other is created by a builder, for building purposes. I appreciate that this example might be criticised for building in assumptions relating to what it seeks to demonstrate, and then extracting, or justifying, a test from that, but in the heavily subjective realms of definition in the artistic field one has to start somewhere."

He then applied this test to the helmets (be they the final props or the original clay models of them), and decided that whilst their design was doubtless intended to convey something about the Stormtroopers - menace and anonymity - that expression was utilitarian, for the purpose of being a costume prop, not for artistic ends in themselves. Furthermore, he held that the same applied to toy Stormtroopers produced by Lucasfilm, which he found to be primarily for the purposes of play, rather than artistic interpretation.

[Here I must diffidently and respectfully take issue with one of His Lordship's findings. He says, at para 123, "While their appearance is obviously highly important ... they are not made for the purposes of their visual appearance as such. While there is no accounting for taste, it is highly unlikely that they would be placed on display and periodically admired as such" Having wandered around the dealers' rooms of several science fiction conventions, and for that matter seen the very expensive Star Wars figurines on sale just up the road from the RCJ in the London branch of Forbidden Planet, I would suggest that there is quite a market in reproductions of Stormtroopers and many other such characters for the purpose of admiration by adult admirers. Indeed, one prominent law-blogger of my acquaintance comes readily to mind, having seen the inside of his office! I am rather surprised that Lucasfilm did not lead evidence of this market, as it might have made Mann J a little more wary in reaching this conclusion. Nonetheless, it does not affect the underlying test he derived.]

If not sculptures, were the helmets instead works of artistic craftsmanship? Here the legal guidance is even vaguer, with the leading case of Hensher v Restawile being infamous for having five Law Lords give five different explanations of what a WAC was. Mann J considered various later attempts to draw some common thread from that case, and settled on the test of Tipping J in the New Zealand case of Bonz Group v Cooke :

"for a work to be to be regarded as one of artistic craftsmanship it must be possible fairly to say that the author was both a craftsman and an artist. A craftsman is a person who makes something in a skilful way and takes justified pride in their workmanship. An artist is a person with creative ability who produces something which has aesthetic appeal."

Again, applying this, the helmets were not created as artistic works as such. Indeed, on close examination, they had many characteristics more typical of the props they were, such as apparently three-dimensional details being painted on. Since the helmets were neither sculptures nor WACs, they fell into no category of items in which copyright could subsist under the Copyright, Designs and Patents Act 1988 and so there was no copyright in them for Ainsworth to infringe. (Equally, as noted, this meant that his own claim for copyright in them fell at the start.)

But this was not the only legal point in Mr Ainsworth's favour. Mann J went on to consider the effect of sections 51 and 52 of CDPA 1988, which deal with the relationship between copyright and registered design. Section 51 in particular was introduced to deal with the problem that arose in the 1970s of car manufacturers seeking to stop the sale of third-party spares by claiming that such items infringed the copyright in the original design drawings. Now, it remains generally true that, as stated in the 1940s case of King Features Syndicate v Kleeman - the 'Popeye' case - you infringe the copyright in a drawing by turning it into a 3D object. But s.51 says that this is not so if the drawing you are working from is a design document rather than an artistic work in its own right. In other words, if a drawing is one that exists specifically to be made into an item, then nobody infringes its copyright by so making an item based on it. The item in question might be protected by design right, but such rights are both shorter and more constrained than copyright. S.51 also applies to preliminary models, and Mann J held that both the concept art and the original clay models of the helmets fell within its scope. As such, Ainsworth did not infringe any copyright in them (which, as already noted, did not subsist for the models anyway) by making final items based on them.

Finally, Mann J turned to s.52, which seeks to avoid the anomaly whereby an industrial design would be protected for a maximum of 25 years by design right, but any element of it protected by copyright got the full life-of-creator-plus-70-years of protection. Here, the legal argument becomes extremely complicated, as the events in dispute took place over a period when the law changed substantially and various transitional measures were put into place. But the end result was that even if s.51 had not provided a defence, Ainsworth could rely on s.52 to say that because the helmet design had been mass-produced, it was protected by the shorter term of design right rather than the full term of copyright - and given the timing of events, such rights had expired. Interestingly, Mann J did not hold that the original bulk prop production constituted mass production, as it had clearly only been for internal, rather than commercial, purposes. Instead he held that Lucasfilm's extensive merchandising of Stormtrooper toys was mass production of the helmet and armour design, and that this had the effect of making the design one limited to the shorter (and thus expired) design right rather than copyright protection.

The judgment also goes into other legal issues, such as whether Ainsworth was contractually obliged in any case to assign copyright in anything he made to Lucasfilm (he was, but as seen nothing he made was protected by copyright anyway) or whether he was under an obligation of confidence not to market products based on his work for Lucasfilm (at the time, perhaps, but not now, according to the judge). He was also held not to have passed off his work as that of Lucasfilm, whilst a trade mark claim was dropped by mutual consent.

So, what do we get out of Lucasfilm v Ainsworth for IP law? A long-overdue attempt to provide a clear judicial test for the meaning of 'sculpture' and 'work of artistic craftsmanship' within CDPA 1988, which I expect to see being cited and making its way into IP texts before long. We also got a clear assessment of the application of s.51 to the creation of articles from such items as concept artwork for films; it seems to me that this gives a green light to costume hobbyists to turn to their Making Of... books and turn the design art therein into garments and props, as not only does s.51 legitimise doing so, but arguably Mr Justice Mann's decision on copyright means that it simply does not subsist in film props and costumes at all. Such activity may infringe design right in such items if done commercially, but as there is an exemption for acts done privately, making replica costumes for ones own use would not infringe any design right that did exist.

To summarise then: both Lucasfilm and Mr Ainsworth will be looking ahead to the next legal round, Ainsworth probably with a wary eye on his possible legal bill (which is of course fiddling small change to Lucasfilm), whilst Mr Justice Mann's judgment not only provides useful clarification of some famously vague areas of copyright law but on the face of it removes, in the UK at least, copyright protection from very many costumes and props depicted on film and TV, as well as provided exemption for their reproduction even where copyright may subsist. Meanwhile, we await Lucasfilm v Ainsworth, Part II: Return of Queen's Counsel.

Welcome to LawClanger

2008-07-31T21:58:00.000+01:00

Does the world need another intellectual property law blog? Indeed, does it need another intellectual property lawyer? I sincerely hope so, seeing as how I have recently given up a well-paid and very interesting (albeit often in the 'may you live in interesting times' sense) career to try to become one.

Firstly, a little personal background. I'm what would be termed a mature entrant to the profession. I graduated in 1990 from Imperial College with an MEng in electrical and electronic engineering, and joined the RAF as an engineering officer. I served in roles as varied as project management and satellite mission control, and in locations from the Falkland Islands to Iraq. During this time, I gained an MSc in satellite communications engineering and later, through the Open University, my LLB. Having become increasingly interested in law, and approaching the mid-career option point where I could leave with an early pension, I decided to attempt the transition to law, and, in view of my technical background, intellectual property law in particular. I am currently nearing completion of an LLM in IP and IT law at the University of Edinburgh (although I am back in London to finish off my dissertation) and will be starting the Bar Vocational Course at BPP Holborn in September.

Why a blog? I've posted on legal and IP issues in the past on a personal journal, but much of that is not open to external readers and I also feel I should be wary of treating my friends to too many discussions on the application of s.51 CDPA 1988 - if for no other reason than I want to keep them. Hence a separate law blog.

Why LawClanger? For those of you unfamiliar with UK childrens' television circa 1969-1972, I suggest you look here; I have long had a fondness for the Clangers, and have used some variation of the term as a user ID before.

So, welcome to LawClanger. My main interest is IP, but information technology, Web 2.0 (including arguments as to what it is), open knowledge and indeed any matters pertaining to the interaction of law, technology and society are all likely to be discussed herein.

Simon