IMPACT®

DOSing around & squatters rights

In the usual course of events, a technology lawyer would only be connected with denial of service (DOS) or distributed denial of service attacks (DDOS) if they were advising the Crown Prosecution Service on the prosecution of such an attack. This nice chilled out position doesn't apply in the case of Geeklawyer, the anonymous IT barrister whose blog is famous/infamous for its entertaining and acidic discourses on current affairs.

We learn from Lawcareers.net that Geeklawyer's blog "has been dismantled by anarchists who claim he's part of an assassination plot". Having looked into this, the "dismantling" has taken the form of a DOS attack that has left the poor blog out of action, with just a holding page. Not one to be stopped by a technical hitch of any size, Geeklawyer has set up "The Squat", a temporary home.

In addition to using his geek skills, I wonder whether Geeklawyer will be deploying his legal experience and complaining about the attack to the local police, and assisting with a prosecution under section 3 of the Computer Misuse Act?

Creative Commons: IMPACT guide to the essentials

Whilst still in his role as an IMPACT® lawyer, Andrew Mills wrote an overview of Creative Commons for the October/November 2007 issue of Computers & Law. What follows is an IMPACT®  guide on Creative Commons, based on Andrew's article.

It's Mine, All Mine...

Over the course of this week, BBC Radio 4 is running a series of programmes looking at "the global war between the defenders of intellectual property and those determined to share it". Called "Mine All Mine", each programme will be at 3.45pm.

Whilst I think that "global war" might be taking things a bit too far, there's certainly a number of IP policies that are the subject of an ongoing and heated discussion, and this series looks to be a good introduction to that discussion. The UK IPO email bulletin about the BBC4 series gave the following programme overview:

"My Idea -Monday 25 February 15:45-16:00
Most scientists and inventors want to protect their work with patents, filing hundreds of thousands every year. But without patents could the world have cheaper healthcare and more efficient cars?

My Name- Tuesday 26 February 15:45-16:00
Trademarks have to be protected, but should anyone be allowed to trademark a colour or a phrase? And is it really a sin to buy a fake Rolex watch?

My Music- Wednesday 27 February 15:45-16:00
The music industry has been revolutionised by the internet explosion. With free music available online, why should anyone pay for it?

My Pictures-Thursday 28 February 15:45-16:00
Anyone with a broadband computer can now download and watch virtually any movie free of charge. This is illegal, but the chances of being prosecuted are close to zero. Some consider this the death of an industry, but others call it healthy anarchy.

My Words-Friday 29 February 15:45-16:00
Plagiarism has become a nightmare for teachers, publishers and journalists. Anyone from a lowly GCSE student to a high-profile writer can easily copy a chunk of text from a website, and it is equally easy to catch someone doing so. But there are those who defend the free exchange of other people's words as a basic liberty."

If you're interested in taking a deeper look at the issues covered in the series, a good place to start is one of the books by Laurence Lessig, an excellent writer and advocate for "free culture", who is also the speaker at this year's SCL Lecture. (In fact, as we've previously noted on the blog, if you don't want to buy one of Lessig's books, you can legitimately download a copy from his website because they are Creative Commons licensed.)

This is a pre-recorded blog! (A week-long disclaimer)

This week, a lot of the IMPACT® team are either on holiday, embroiled in Court hearings for clients, or at conferences. Whilst, with the obvious exception of holidays, none of these activities are exactly rare, they're all happening in one week.

With these exceptional circumstances in mind, we took the step of writing a number of blog posts last week that will appear on the blog over the course of this week. If our posts therefore seem even more out-of-touch or flies in the face of legal developments during the week, please bear with us...

As usual, some of the other IP/IT blogs out there will be commenting on legal news "as it happens". Our favourite blogs are listed on the right-hand column of the site. Secondly, Laurence Eastham, Editor of Computers & Law has recently written about his favourite IT law blogs, an article containing a number of blogs not in the IMPACT® list.

Dead hand of copyright reaches further into the past

A number of blogs including the IPKat have reported on a statement by EU Commissioner Charlie McCreevy, arguing for the copyright period for sound recordings be extended from its current 50 years to 95 years.

The Commissioner doesn't appear to have put forward any positive reason for such an extension being a good thing; simply that if the duration of copyright for other type of works is more than 50 years, why shouldn't that be the case for copyright?

In the UK, MP Pete Wishart has put forward a Private Members Bill that, if passed into law, would give effect to McCreevy's suggestion.

The reasons for copyright durations being as they are, and whether those durations are too short or too long, is the subject of a more detailed post that we will have to leave for another day.

The central issue in this debate is the balance between the monopoly given to a creator by copyright and the right of the public to benefit without restriction (e.g. educationally) from the copyright materials. When should the balance shift from one to the other, and should the timing of this shift be different depending on the type of work?

Is the purpose of copyright to enable the fledgling creator to benefit from her works at the time of creation (i.e. when they should be pulling their finger out and promoting themselves), or to allow her descendants to live the good life on the royalties? Yes, we've all heard the story of the guy whose book/picture/music wasn't recognised as great until oodles of years after his death, but those stories do appear to be the exception rather than the rule. In any event, and not to be morbid, by the time the critics discover these great works, the artists aren't exactly in a position to benefit from any royalty cheques.

The Open Rights Group is already gearing up for a campaign against copyright extension proposals such as that from the EU Commissioner and Pete Wishart. If you are against such proposals, follow the previous link to the ORG blog and various resources.

IMPACT aside: McCreevy is also one of the leading proponents of a unified European patent litigation system. 

Acknowledgement: photo "Lego Skeleton Earrings" http://www.flickr.com/photos/grytr/270309878/

Tribunal orders disclosure of legal advice on public interest grounds

Breaking new ground in FOI law, the Information Tribunal is reported to have ordered that legal advice given to Merseytravel should be disclosed because the public interest in seeing the advice outweighed the legal professional privilege of that advice. Thanks to the UK Freedom of Information Blog for spotting this major story.

Apologies to that blog for using the extract from the Information Tribunal ruling, but it's worth republishing here:

"Weighed in the round, and considering all the aspects discussed above, we are not persuaded that the public interest in maintaining the exemption is as weighty as in the other cases considered by the Tribunal; and in the opposing scales, the factors that favour disclosure are not just equally weighty, they are heavier. We find, listing just the more important factors, that considering the amounts of money involved and numbers of people affected, the passage of time, the absence of litigation, and crucially the lack of transparency in the authority’s actions and reasons, that the public interest in disclosing the information clearly outweighs the strong public interest in maintaining the exemption, which is all the stronger in this case because the opinion is still live. To quote Bellamy : “there is a strong element of public interest inbuilt into the privilege itself. At least equally strong countervailing considerations would need to be adduced to override that public interest”. In our judgement, the countervailing considerations adduced here are not equally strong; they are stronger. The opinion should be disclosed."

"Data protection and privacy have come of age": the Information Commissioner

Something that completely passed me by in January was a speech by Richard Thomas, the Information Commission, about his role. The speech was given to the Centre for Regulated Industries. The ICO talks very often, and so it's good that there is a copy of Thomas's lecture note on the ICO website.

The overall conclusion of Thomas was that there is an overall trend towards information rights being taken more seriously, with privacy, data protection and freedom of information now being important national issues. More significantly, he again signalled that changes the UK's data protection regime are on their way.

Here's a quick summary of key points/topics covered:

• The laws that set out the ICO's responsibilities and powers
• The independent status of the ICO
• The ICO's functions: promoting good practice, ombudsman, "strategic" regulator
• Common ground and tensions between the Freedom of Information & Data Protection regimes
• The UK Freedom of Information regime in its first few years: an overall perceived positive response to FOI from both the public and public sector bodies; FOI is "working well"
• The data protection regime: the ICO is not keen on the "bureaucratic" nature of the Data Protection Directive, which the Data Protection Act 1998 implements
• The ICO's data protection strategy
• The results of the recent high-profile data protection breaches: "There is at last a recognition that there needs to be much more seriousness towards data protection"
• Whilst data protection and privacy have "come of age", we must not be complacent. The ICO is reviewing data sharing and the strengths and weaknesses of the Data Protection Directive, and this may result in changes to the UK's data protection regime.
• A desire for a coordinated international approach to data protection.

Thanks to the UK Freedom of Information Blog for spotting this.

Get out of My Space!

Most discussions in legal circles about social networking have, over the past year or so, focussed on Facebook. So, it's only fair that, after a year in which most of us have grown sick of seeing the "FB" word in every sentence, it's the turn of Myspace to take up some space in the legal journals and blogs. I've picked up on two interesting stories recently.

Myspace.co.uk obtained from Total Web Solutions

Firstly, there is news that Myspace Inc, the company that owns/operates Myspace, has secured ownership of the Myspace.co.uk domain name using the Nominet Dispute Resolution Procedure. The .co.uk domain name was registered by Total Web Solutions 6 years before Myspace was launched, and Total Web Solutions could therefore have not registered it with a then-non existence social networking site in mind!

To succeed under the Procedure, someone (known as the "Complainant") must satisfy a Nominet-appointed expert on the balance of probabilities that, in connection with a domain name:

• it has enforceable rights under applicable law in a name/mark that is identical or similar to the domain name in question ("Complainant's Rights"); and
• the Respondent's possession of the domain name constitutes an "Abusive Registration".

The procedure terms a domain name to be an Abusive Registration if it:

• was registered in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant's Rights; or
• has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant's Rights.

In this case, the expert ruled on a number of issues including:

• Total Web Solutions had at some point between August 2005 and April 2006 begun using the domain name to publish adverts for social networking sites. It had therefore adjusted its use of the domain name to gain income from the domain name by using Myspace Inc's reputation.
• Whilst Total Web Solutions did seek substantial payment (offers ranged between $100k to $430k) for the domain name, this did not amount to Abusive Registration.
• Total Website Solutions had argued that "MYSPACE" was a generic term and therefore Myspace Inc could not have rights in it. This argument was rejected.

Thanks to Nicky at Naked Law for picking up on this story. To quote Nicky, the ruling: "serves as a reminder that a registration that was initially legitimate may become abusive if the registrant subsequently changes its usage of the domain name."

Myspace friends request leads to criminal charges

Secondly, from Evan Brown's Internet Cases blog in Chicago comes news of a contempt of court ruling by a New York City criminal court relating to a friend request accepted on Myspace. For this bizarre sounding story to make any sense, here's a couple of extracts from Evan's blog post:

"An order of protection, issued by a New York family court, required that defendant Fernino have no contact with a certain Delgrosso. After Fernino added Delgrosso as a “friend” on MySpace, she was charged with contempt of court for allegedly violating the order of protection..."

"In this case, the court observed that even though Delgrosso could have simply denied the friend request, it was still a form of contact. It found that the form of communication was no different from the defendant having a third party say to Delgrosso, “Your former friend wants to communicate with you. Are you interested?"

Evan also mentions a number of cases - both US and UK - where social contact at-a-distance (e.g. online) has been regarded as no different from social contact made in person.

SFLC launches legal primer for FOSS projects

The Software Freedom Law Centre has today issued detailed legal guidance on free software/open source ("FOSS"). Aimed at those involved in FOSS projects, the 'Legal Issues Primer' seeks to deal with all key legal issues including:

• Choosing a licence
• Enforcing a licence (if you have an infringement problem, and polite requests can't solve it, maybe you can hire the Software Freedom Law Centre!)
• Structural/corporate issues
• Dealing with patent infringement claims
• Choosing and using a trade mark

Whilst written from a US law perspective, much of the guidance will be relevant in other jurisdictions.

Being produced by the SFLC, the guide focusses on SFLC-connected FOSS licences, the main one being GPL.

The trade mark section looks particularly useful. Whilst most discussions of FOSS legal issues have so far focussed on the fine print of the licences, use of brands by the FOSS community is set to become a big issue. At the Open Source Consortium event I attended late last year, one of the calls from the floor was for lawyers to spend their time considering the trade mark issues and their resolution, rather than spending time commenting on FOSS licences. For example:

• Popularly acclaimed projects such as the Firefox browser tend to lead to the appearance of large numbers of websites and discussion groups dedicated to the project. Whilst this is generally fine, what if a website/group is "anti" the project and spreading negative publicity using the brand?
• The purpose of some projects is to created FOSS alternatives to commercial software. Calling the project/resulting software a name that incorporates the name of the commercial software isn't a great idea, as it could cause people to think that the FOSS project/software is from the commercial software house.

I recommend that you read the PDF rather than the web-page version; whilst I'm not one to criticise layouts or designs (IMPACT isn't perfect... yet!), the web-page text is right-aligned, making it difficult to read. Still, that's a minor fault in an excellent contribution to the FOSS library of free legal resources.

IPITevents

A website has been launched that aims to "fill a problem — how to easily keep track of upcoming intellectual property and information technology conferences, events, and CPDs in the UK."

The site, IPITevents, is the creation of Jordan S. Hatcher, a very friendly IP/IT consultant and academic who I've met a couple of times.

It publishes details of IP and IT legal events in the UK, gathered from various sources. Whilst the site is still in 'beta' form, it looks to be very useful and certainly a resource that the IMPACT team will be using  to help pick interesting conferences and events to attend.