MEMORY PALACE

European Public Policy Blog: Protecting intermediaries - and copyright

2011-12-16T21:50:00.000Z

European Public Policy Blog: Protecting intermediaries - and copyright: Earlier today the Court of Rome issued an important decision around ISP liability limitation, copyright and video hosting. It reaffirmed tha...

European Public Policy Blog: Smart Meters for Smart Energy Consumption

2011-12-16T21:49:00.000Z

European Public Policy Blog: Smart Meters for Smart Energy Consumption: The new Swedish Presidency of the European Union has rightly put the climate change challenge as one of its priorities. Next week, Europe's...

Morecambe Bay Hospitals Trust under fire: Crudely-titled email sparks watchdog probe (From Lancaster And Morecambe Citizen)

2011-12-11T14:37:00.000Z

Morecambe Bay Hospitals Trust under fire: Crudely-titled email sparks watchdog probe
Morecambe Bay Hospitals Trust under fire: Crudely-titled email sparks watchdog probe (From Lancaster And Morecambe Citizen)

Smart Grid Research, Reports and Presentations

2011-12-11T13:00:00.000Z

Smart Grid Research, Reports and Presentations

Renewable Energy Focus - Downloads

2011-12-11T12:57:00.000Z

Renewable Energy Focus - Downloads

Consultations - Department of Energy and Climate Change

2011-12-11T12:53:00.000Z

Consultations - Department of Energy and Climate Change

E-Health Insider :: Govt to opt patient data into trials

2011-12-07T11:38:00.000Z

The government wants to change the NHS Constitution so that patient information is automatically included in clinical research.

The move, which will be subject to consultation, is part of a raft of government announcements designed to boost investment in Britain’s life sciences sector and to drive innovation in the NHS.

The headline announcement, that data linking hospital and primary care data could be released to drug and other companies, created a storm of controversy in the national media, with privacy watchdog groups warning that it would herald the “death of privacy”.

However, in a press release conflating a number of different plans, the Department of Health insisted that the move to change the NHS consultation came “in response to calls from research charities and clinicians for government to get patients more involved in supporting the research agenda.”E-Health Insider :: Govt to opt patient data into trials

NDL - Application Integration, Mobile, Emulation, Integrate, Business, Solutions

2011-12-07T11:32:00.000Z

Around 100 public sector delegates gathered at seminars in Manchester and London to learn about the latest developments in mobile working from specialist software house NDL. The work practice is predicted to expand rapidly in the next three years with both the number and scope of mobile projects in health organisations growing dramatically.

Research carried out by NDL, which specialises in mobile working and integration, showed that a further 33% of health authorities plan on joining the 31% of organisations which already have a live mobile working project. What’s more, by 2014 60% of projects are expected to involve more than 100 workers, compared to just 23% currently.

The company’s response has been to develop a new version of its corporate mobile system awiMX capable of enabling non-technical users to develop apps on the Android, Windows and Blackberry operating systems and distribute them to respective phones and tablets. At the seminars, the system was demonstrated by NDL consultant Patrick Kirby who built and distributed an expenses app across the three operating systems and five devices in just 15 minutes. Delegates also heard about case studies from a number of health authorities including North Devon and Rotherham NHS Trusts.NDL - Application Integration, Mobile, Emulation, Integrate, Business, Solutions

E-Health Insider :: NDL predicts mobile revolution

2011-12-07T11:31:00.000Z

A study of how the UK health sector is introducing mobile working has predicted that the market is on the verge of a “revolution.”

Software provider NDL surveyed the health sector as part of its annual mobile working report this spring. The survey received responses from 40 healthcare workers – mainly healthcare IT specialists.

The responses showed that the use of personal information management applications – such as mobile email and calendars – was “well established” in the sector.

The report goes on to predict that such applications will spread rapidly over the next three years, in what could “almost be described as a revolution in mobile usage.”
E-Health Insider :: NDL predicts mobile revolution

E-Health Insider :: DH launches 3m lives telehealth campaign

2011-12-07T11:30:00.000Z

The Department of Health has launched a campaign to use telehealth to improve the lives of 3m people over the next five years.

The launch came as the DH simultaneously published a review of innovation in the NHS and the ‘early headline findings’ from its Whole Systems Demonstrator programme.

The WSD randomised controlled trial was launched in May 2008 to assess the benefits and impacts of telehealth and telecare technology on the NHS and social care services.
E-Health Insider :: DH launches 3m lives telehealth campaign

E-Health Insider :: NHS open data plans 'death of privacy'

2011-12-07T11:29:00.000Z

Privacy groups say a government plan to share anonymised NHS data with commercial companies will herald the “death of patient confidentiality”.

Prime Minister David Cameron is due to give a speech this afternoon unveiling plans to boost the UK’s life sciences sector.

According to wide-spread coverage of his speech, these will involve a new service, developed by the Medicines and Healthcare Products Regulatory Agency, that will link anonymised hospital data with data from primary care.

The government is to spend £60m developing the Clinical Practice Research Datalink. It is not clear whether companies will pay to use it.E-Health Insider :: NHS open data plans 'death of privacy'

Open Data and E-Health

2011-12-07T11:24:00.001Z

Today’s announcement is less ambitious with regard to patient access, but more ambitious about opening up information to industry.The Open Data measures published on the Cabinet Office website say that from September 2012, healthcare datasets from GP practices will be linked with hospital data to enable healthcare impacts to be tracked across the entire health service.The secure data linkage service - set up by the Health and Social Care Information Centre - will allow users to track the efficacy and cost-effectiveness of things like drugs and procedures and is expected to put the UK in a “prime position for research investment.”The Department of Health said these linked data sets would provide the health service, pharmaceutical industry, academics and other professionals with “unequalled levels of information about the journeys of patients through the care system and the outcomes of different treatments.”The document also repeats earlier announcements that the government will publish practice-level prescribing data by September 2012 and additional health and social care datasets by September 2013.This will include GP reference data, Care Quality Commission Provider Profile Reports and Choose and Book usage at GP practice level.Via Rebecca Todd

E-Health Insider :: Government announces new Open Data plans

2011-12-07T11:22:00.000Z

E-Health Insider :: Government announces new Open Data plans

The government has pledged that everybody in England will have online access to their GP records by “the end of this parliament” in 2015.

The announcement was made as part of Chancellor George Osborne’s Autumn Statement, which painted a generally bleak picture of the UK economy, while including some measures to try and stimulate growth.

Among these are a Plan for Growth that includes a number of Open Data measures aimed at stimulating industry and jobs. These were developed in collaboration with a number of companies including GlaxoSmithKline.

A document outlining the measures says providing access to personal GP records online will empower patients and encourage the market for education in data management and learning platforms.

Why Can't Patients See Their EHR Data? - Healthcare - The Patient - Informationweek

2011-12-07T11:03:00.000Z

Why Can't Patients See Their EHR Data? - Healthcare - The Patient - Informationweek
Should healthcare providers give patients access to their electronic health records and if so, how do they make that happen? A new review in the Journal of the American Medical Informatics Association (JAMIA) examines the complexities of giving patient access to their records online.

Written by researchers at the University of Toronto but focused largely on the U.S. environment, the study notes that while EHR data is not typically being shared with patients, many consumers want access. And research suggests that data sharing with patients, coupled with communication and education, can help improve efficiency, quality of care, and patient satisfaction while also lowering costs.

The Doctrine of Frustration

2011-12-06T21:16:00.000Z

The Doctrine of Frustration

We live in a time of economic and political instability, ratcheting fuel costs, commodity price volatility and industrial action. In addition, “exceptional” weather events seem to be becoming the norm.

Open Rights Group | Self-regulation / private policing: not just a UK problem

2011-12-02T12:01:00.000Z

Open Rights Group | Self-regulation / private policing: not just a UK problem
I posted a week or so ago about the latest round of discussions hosted by DCMS regarding 'self-regulation' and Internet policy. In addition to ongoing discussions about a new, faster scheme for website blocking, there are now plans proposed by rights holders for search engines to 'self-regulate' in the name of copyright enforcement too.

Copyright industry opposes ISPs’ proposed regime • The Register

2011-12-02T12:00:00.000Z

Copyright industry opposes ISPs’ proposed regime • The Register
Given the reception to Australia’s ISPs’ proposal to trial a copyright infringement regime, you have to wonder if people understand what “proposal” actually means.

The ISPs offered their proposed for discussion at the end of last week, but judging by the reception the proposal has received, everyone seems to think it’s a fait accompli. It’s not: it’s a discussion paper, and while it’s generating buckets of discussion, it’s all at the level of surface froth.

According to a report in The Australian, rights-holder lobby the Australian Content Industry Group is whining that the scheme isn’t “fair and balanced” (without defining its specific complaint), while Foxtel wants offenders’ broadband connections rate-limited (a climb-down from the content industry’s long-standing “cut them off” demand).

iiTrial in the High Court: Day One • The Register

2011-12-02T11:59:00.000Z

iiTrial in the High Court: Day One • The Register

The Communications Alliance, which represents the telecommunications industry, and the Australian Performing Rights Association have both been given permission to intervene in the “iiTrial” High Court appeal.

In the appeal, Village Roadshow and others are seeking to overturn a Federal Court ruling that iiNet – and, by extension, other carriers and ISPs – does not authorise its users’ copyright infringement simply because it did not prevent that infringement.

Copyright Act could defang infringement notices: iiNet • The Register

2011-12-02T11:57:00.001Z

Yesterday’s proceedings in the ongoing “iiTrial” High Court appeal turned up an interesting problem in the copyright holders’ wish to turn ISPs into their enforcers: a savvy and funded user group could use Australia’s copyright law to prevent ISPs from issuing notices against them.

This issue emerged during submissions by Richard Cobden, senior counsel for iiNet, before the High Court (transcript here).

Software copied functions, but didn't infringe copyright • The Register

2011-12-02T11:57:00.000Z

Software copied functions, but didn't infringe copyright • The Register

A computer program does not infringe the copyright of another one just because it performs the same function as it, but it could do if it copies the means by which the other program works, an advisor to the European Court of Justice (ECJ) has said.

Advocate General Yves Bot said that computer programs that have the same possible functions can co-exist without copyright being infringed – but creators of the means by which the programs carry out those functions can obtain copyright protection for those methods.

In doing so he agreed with a provisional ruling by the UK High Court, which had originally referred the case to the ECJ.

HealthIT.hhs.gov: Privacy & Security Framework

2011-12-02T11:51:00.000Z

HealthIT.hhs.gov: Privacy & Security Framework
To support the goal of building public trust and participation in electronic HIE, the Tiger Team has recommended a number of privacy and security policies for ONC's consideration.

UBB: Ottawa vows to review CRTC ruling on Internet billing | FP Tech Desk | Financial Post

2011-11-18T16:31:00.000Z

UBB: Ottawa vows to review CRTC ruling on Internet billing | FP Tech Desk | Financial Post
The federal government says it will review this week’s decision by the country’s telecommunications regulator to allow large Internet providers to use new capacity-based billing for independent service providers.

CBBC stole my characters: Cartoonist launches £2m copyright claim after children's show becomes a global hit | Mail Online

2011-11-18T16:26:00.001Z

CBBC stole my characters: Cartoonist launches £2m copyright claim after children's show becomes a global hit | Mail Online

A cartoonist who claims the BBC ripped off characters he created and used them in a children's show which became a world-wide hit has launched a £2m breach of copyright claim.

CanLII - 2011 ONSC 6784 (CanLII)

2011-11-18T16:26:00.000Z

CanLII - 2011 ONSC 6784 (CanLII)
The plaintiff, Mahmoud Elfarnawani, has commenced an action against the defendants, the International Olympic Committee (IOC) and its internal Ethics Commission (EC), claiming damages for the torts of defamation, breach of a duty of good faith, and abuse of process. The action flows from the decision of the IOC, acting on the recommendation of the EC, to declare the plaintiff personae non grata within the Olympic Movement and to recommend that the members of the Olympic family not grant him any accreditation or have any dealings with him. The IOC posted this decision on its internet website.

Dutch filmmakers complain about use of their film titles in comics

2011-11-18T16:25:00.000Z

Dutch filmmakers complain about use of their film titles in comics

Several Dutch film directors and producers are complaining about the use of their film titles in a comic book on the history of Dutch cinema. The filmmakers did not give their consent for using the titles.

The comic book, called Filmfanfare, summarizes a famous Dutch film as a comic on each page. The project is a continuation of the project Mooi is dat!, in which 57 Dutch novels and plays were drawn as a comic. The initiators of this project, Dutch Film institute EYE, Film Foundation and Foundation BKVB, did not ask for permission for the use of the film concepts and titles in the comic book. Actually, the directors and producers didn’t know about the project Filmfanfare until they read it in the newspaper.

Belgian collecting society asks ISPs to compensate copyrights online

2011-11-18T16:23:00.000Z

Belgian collecting society asks ISPs to compensate copyrights online
After our previous reports on British Internet Service Providers (ISPs) that received letters with requests to block file-sharing sites, now the Belgian collecting society SABAM calls upon Belgian ISP's to get actively involved to protect copyrights. However this time, the ISP’s have not been requested to block access to file sharing sites, but to pay a fee to SABAM, because they make copyright protected works available online. Each provider will receive an invoice for "communication to the public" of copyright protected works and SABAM wishes to collect these invoices on behalf of copyright holders.

European Parliament votes on European net neutrality

2011-11-18T16:22:00.001Z

European Parliament votes on European net neutrality
Today the European Parliament adopted a resolution on net neutrality at a European level. The resolution is adopted with an overwhelming majority of votes and calls on the European Commission to introduce net neutrality legislation.

During the European parliament’ debate yesterday, the majority of MEPs already voted in favour of a free and open internet and that this should be regulated on a European base rather than different legislations across Member States. The question though is how European legislation should be realised.

Danish anti-piracy organisation demands blockade streaming site Grooveshark

2011-11-18T16:22:00.000Z

Danish anti-piracy organisation demands blockade streaming site Grooveshark
RettighedsAlliancen (RA), a Danish coalition of right holders in the music and film industry, has sued Grooveshark. According to RA, the music streaming service has no (licensing) contracts with right holders to offer their music. Therefore, Grooveshark is infringing the holders’ copyrights.

“When you want to offer music on the Danish market, one must have an agreement with right holders to do so. Grooveshark does not and has been completely uncooperative,” Maria Fredenslund, chief of RettighedsAlliancen explained.

Canadian BitTorrent Sites Dominate Rogue Website Lists in SOPA Submissions « James Gannon's IP Blog

2011-11-18T16:21:00.000Z

Canadian BitTorrent Sites Dominate Rogue Website Lists in SOPA Submissions « James Gannon's IP Blog
Yesterday, hearings began in the United States House of Representatives on H.R. 3261, the “Stop Online Piracy Act” (SOPA). Witnesses from the U.S. Library of Congress, Pfizer, the MPAA, MasterCard and the AFL-CIO all voiced support for the Act, which would give judges injunction-granting powers against ISPs to block rogue piracy websites similar to the process that has been in place over a decade under Article 8(3) of the EU Copyright Directive.

Canada’s copyright laws lag and media industries will suffer, execs say | iPolitics

2011-11-18T16:20:00.001Z

Canada’s copyright laws lag and media industries will suffer, execs say | iPolitics
Continued uncertainty behind Canada’s copyright laws has placed the country in the unenviable position of being a laggard in the digital space, a position from which it may be difficult to recover, media executives say.

BMI sues Willie's Wet Spot for copyright infringement | The Tennessean | tennessean.com

2011-11-18T16:20:00.000Z

BMI sues Willie's Wet Spot for copyright infringement | The Tennessean | tennessean.com

Royalty collecting agency BMI has sued the owners of a Smyrna club known as Willie’s Wet Spot for copyright infringement.

The suit claims the club allowed unauthorized public performances of music on four occasions. Joining the suit against Willie’s are three other companies who own various rights to the music at issue.

The IPKat: Playing catch-up with TvCatchup

2011-11-18T07:40:00.000Z

The IPKat: Playing catch-up with TvCatchup
Today, after an exciting day in town where his attention to friends was exceeded only by his inattention to incoming emails, the IPKat is playing catch-up. And would could be a more appropriate item to catch up on than the Catch-up case itself, ITV Broadcasting & others v TvCatchup.

Australian Health Information Technology: Final Submission on Draft Legislation for the PCEHR. It Is Just Pathetic I Believe!

2011-11-18T07:35:00.000Z

Australian Health Information Technology: Final Submission on Draft Legislation for the PCEHR. It Is Just Pathetic I Believe!

As a non-lawyer I am unable to comment on the drafting of the planned Bills but am basing my comments on the Companion to the Exposure Draft Bill - as I am sure this document accurately reflects both the intention and the drafting of the proposed Bill(s).

It is my view that the intent reflected in the Companion document is deeply flawed and will result in failure of the PCEHR System to deliver the outcomes sought by the Government.

Australian Health Information Technology: This Is A Very Interesting Summary of Public Attitudes on EHR Security in The UK and US. I Suspect Australians Would Be Pretty Similar.

2011-11-18T07:32:00.000Z

Australian Health Information Technology: This Is A Very Interesting Summary of Public Attitudes on EHR Security in The UK and US. I Suspect Australians Would Be Pretty Similar.

A recent survey, released by FairWarning, Inc., details the overwhelming demand for tighter protections against data theft of medical records. The poll of more than 1,000 individuals reveals that U.K. patients think hospital executives should be held accountable for breaches of protected health information.

Patients concerned that their medical and personal information could be stolen want the NHS to take firm steps to ensure effective monitoring and enforcement of privacy regulations, and that access to their medical records is strictly controlled.

FairWarning� News: Privacy Breach Detection: User Monitoring: Trust but verify�

2011-11-18T07:31:00.000Z

FairWarning� News: Privacy Breach Detection: User Monitoring: Trust but verify�
FairWarning^® Announces Program Designed to Fundamentally Reduce Cost and Complexity of Wide-Scale Patient Privacy Auditing

EHR | HIE Interoperability Workgroup - Documents Available for Implementation

2011-11-18T07:29:00.000Z

EHR | HIE Interoperability Workgroup - Documents Available for Implementation

Statewide Send and Receive Patient Record Exchange

The Statewide Send and Receive Patient Record Exchange is the result of a collaborative effort to ensure interoperability when creating an NwHIN Direct solution.

While these specifications may be of interest to several healthcare IT professionals, the primary audience targeted by these documents includes:

Technical management staff representing a Statewide HIE
Technical management staff representing a community participating within a Statewide HIE
Developers of clinical systems that create content for use within a HIE
Developers of integration frameworks that connect systems and create content for use within and between HIEs

Australian Health Information Technology: Interesting Developments In Standards Around Health Information Exchange. Might Be Useful To Review!

2011-11-18T07:28:00.001Z

Seven states, eight e-health records vendors, and three health information exchange providers agree to support interoperability standards that also could make health data exchange easier nationally.
Australian Health Information Technology: Interesting Developments In Standards Around Health Information Exchange. Might Be Useful To Review!

Australian Health Information Technology: The Medical Software Industry Association (MSIA) Has Lost Patience With NEHTA. This Is Getting Serious.

2011-11-18T07:28:00.000Z

Australian Health Information Technology: The Medical Software Industry Association (MSIA) Has Lost Patience With NEHTA. This Is Getting Serious.

Australian Health Information Technology: The Parliamentary Library Of The Commonwealth Government Publishes A Review of E-Health. Must Read Stuff!

2011-11-18T07:26:00.000Z

Australian Health Information Technology: The Parliamentary Library Of The Commonwealth Government Publishes A Review of E-Health. Must Read Stuff!
E health is seen by some as possibly the most important revolution in healthcare since the advent of modern medicine. E health makes use of developments in computer technology and telecommunications to deliver health information and services more effectively and efficiently. As such, it requires a different and radical way of thinking about the delivery of health services.

The 1709 Blog: Photo-shoots and inclusion of copyright-protected works: a reader asks

2011-11-18T06:59:00.000Z

The 1709 Blog: Photo-shoots and inclusion of copyright-protected works: a reader asks
"Does the principle of exhaustion of rights enable someone to prevent a copyright owner from asserting his rights in props which are being for a photo-shoot -- for example where a painting, a sculpture or a book appears in the background on a table in an advertisement? Would there be any kind of defence to a copyright infringement claim? I mention the exhaustion of rights principle -- but I know that not all rights of a copyright owner are exhausted just because the distribution right may have been exhausted!".

The 1709 Blog: Preview Pictures II (Google Thumbnails)

2011-11-18T06:56:00.001Z

The 1709 Blog: Preview Pictures II (Google Thumbnails)
In a judgment handed down yesterday, the Bundesgerichtshof (BGH) confirmed and expanded its position on Google thumbnails. In last year's 'Vorschaubilder' (preview pictures) decision (BGH I ZR 69/08, see Birgit's IPKat post here), the BGH held that Google's image search service does not infringe copyright in the pictures shown as 'thumbnails' in the search results. Since the copyright owner in that case put the pictures on the web and failed to take any steps to prevent them from appearing in Google's image search (which I understand is easy to do), she was deemed to have granted an implied licence for the pictures to be made available to the public by appearing in Google's image search results.

The IPKat: BGH: Google's image search is no copyright infringement

2011-11-18T06:56:00.000Z

The IPKat: BGH: Google's image search is no copyright infringement

Laurence Kaye on Digital Media Law: Hargreaves Review - Prof Jacobs drills into the detail

2011-11-18T06:53:00.000Z

I really liked this summary:
Laurence Kaye on Digital Media Law: Hargreaves Review - Prof Jacobs drills into the detail

Google fights move to force site blocking - FT.com

2011-11-13T16:25:00.000Z

Google fights move to force site blocking - FT.com

MLab-Data

2011-11-04T16:03:00.000Z

MLab-Data
Network transparency cuts both ways. It can be exploited to engage in surveillance of Internet service providers as well as Internet users. In order to better understand DPI use and the scope of its deployment, the project makes use of crowdsourced network monitoring data. So far, we have used data from a test known as Glasnost, which was developed by German researchers to detect blocking or throttling of BitTorrent and other peer to peer (P2P) file sharing protocols.

CRTC issues net neutrality rules - Technology & Science - CBC News

2011-11-04T16:02:00.000Z

CRTC issues net neutrality rules - Technology & Science - CBC News
Big telecommunications companies such as Bell and Rogers can interfere with internet traffic only as a last resort, the CRTC says. Instead, they should use "economic measures" such as new investment and usage limits to combat congestion on their networks.

Big data mining, fairness and privacy

2011-11-02T11:25:00.000Z

Big data mining, fairness and privacy
Ultimately, these big data of human activity are at the heart of the very idea of a knowledge society: a society where decisions - small or big, by businesses or policy makers or ordinary citizens - can be informed by reliable knowledge, distilled from the ubiquitous digital traces generated as a side effect of our living.

Downloading Books for Dummies « Genreville

2011-11-02T11:18:00.001Z

Downloading Books for Dummies « Genreville
I highly recommend reading both Connolly’s essay and her interview with Kiernan for an idea of where the “education” of book pirates–and of publishers–might begin.
"The ethical and legal issues surrounding the illegal downloading of music and film have been exhaustively played out in the media, court and public opinion. And yet, people continue to pirate media. An often overlooked area of media piracy—at least in comparison to that of music, film and television—is the pirating of books."
Interview here.

Copyright stories at Techdirt.

2011-11-02T11:12:00.000Z

Copyright stories at Techdirt.
We've been seeing various news agencies try to claim copyright on any images they post lately, and Christian Tremblay points us to yet another such case. This one comes on a French Canadian story from Canoe.ca.

Copyright Trolling For Dummies; Publisher John Wiley Sues 27 For Sharing 'For Dummies' Books | Techdirt

2011-11-02T11:09:00.000Z

Copyright Trolling For Dummies; Publisher John Wiley Sues 27 For Sharing 'For Dummies' Books | Techdirt
Complaint here: show_temp.pl _1_

Adwords and Transparency

2011-11-02T11:05:00.001Z

US Court order could force online DVD distributor to shut down

2011-11-02T09:45:00.001Z

US Court order could force online DVD distributor to shut down
Judgment here

MPAA wins permanent injunction against Zediva | Media Maverick - CNET News

2011-11-02T09:42:00.000Z

MPAA wins permanent injunction against Zediva | Media Maverick - CNET News

How a Copyright Mistake Created the Modern Zombie

2011-10-19T07:37:00.000+01:00

How a Copyright Mistake Created the Modern Zombie
Even if you aren’t a horror movie fan or have never seen a zombie film, you’ve probably at least heard of “The Night of the Living Dead”. It serves as the seminal modern zombie flick and a movie that, single-handedly, changed horror movies forever.

Also 1, 2 and 3.

Copyright 2.0 Show – Episode 155 – Dead Man Walking

2011-10-19T07:31:00.000+01:00

Copyright 2.0 Show – Episode 155 – Dead Man Walking
It is Friday again and that means that it is time for another episode of the Copyright 2.0 Show.

It was a busy week for copyright news as many of the industry’s biggest dramas slowly ground their way to a conclusion. For one, we are now closer to learning the eventual fate of Limewire, the now endangered file-swapping service, we also get some feedback on Canada’s new copyright law and even a webmaster take on Apple’s new version of Safari.

UK Government Announces Copyright Plans; Surprisingly Good, With A Few Problems | Techdirt

2011-10-14T14:42:00.000+01:00

UK Government Announces Copyright Plans; Surprisingly Good, With A Few Problems | Techdirt

Lady Googoo Gone Gone After Lady Gaga Gets Injunction Against Parody | Techdirt

2011-10-14T14:41:00.000+01:00

Lady Googoo Gone Gone After Lady Gaga Gets Injunction Against Parody | Techdirt

Coalition splits on Digital Economy Act - Lib Dems try to do something: shocka | TechEye

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

Coalition splits on Digital Economy Act - Lib Dems try to do something: shocka | TechEye
The Digital Economy Act has been challenged by the Tory Coalition partner, with Liberal Democrat MP Julian Huppert proposing a motion that would repeal parts of the law related to website blocking.

Former Marin man files copyright for Jobs image - San Jose Mercury News

2011-10-14T14:36:00.000+01:00

Former Marin man files copyright for Jobs image - San Jose Mercury News
I personally created and designed the graphic logo in the evening of Wednesday, Oct. 5, after hearing the news of Steve Jobs' unfortunate passing," said Adeli, an entrepreneur and graphic designer. "As a longtime admirer of Steve Jobs and Apple, as well as someone whose family has struggled through losses due to cancer, I felt the urgent need to create a remembrance for Steve, a fitting tribute to a man whose vision has helped shape the world we live in."

Copyright Fight Brewing Over Who 'Owns' Steve Jobs Silhouette Inside The Apple Logo | Techdirt

2011-10-14T14:34:00.000+01:00

Copyright Fight Brewing Over Who 'Owns' Steve Jobs Silhouette Inside The Apple Logo | Techdirt
But, of course, knowing the times we live in, is it any wonder that there may be a copyright and trademark fight brewing over this tribute image? As the image went viral, many were crediting a Hong Kong design student by the name of Jonathan Mak -- who noted that because of the image he was getting questions about "buying the copyright" on the logo, as well as some job offers.

Help, I'm getting arrested! | Android Atlas - CNET Reviews

2011-10-14T14:29:00.000+01:00

Help, I'm getting arrested! | Android Atlas - CNET Reviews

Music videos in virtual worlds | KZero Worldswide

2011-10-14T14:27:00.000+01:00

Music videos in virtual worlds | KZero Worldswide
You know you have a really engaging virtual world when users start creating content within it – if it’s allowed that is. Obviously for K&T VW’s giving users the ability to create content can lead to moderation (etc) issues, but for older teen worlds it’s a great idea. It’s also a profitable one as IMVU’s recent performance clearly demonstrates.

Music videos in virtual worlds | KZero Worldswide

2011-10-14T14:24:00.000+01:00

Music videos in virtual worlds | KZero Worldswide
Music videos in virtual worlds

You know you have a really engaging virtual world when users start creating content within it – if it’s allowed that is. Obviously for K&T VW’s giving users the ability to create content can lead to moderation (etc) issues, but for older teen worlds it’s a great idea. It’s also a profitable one as IMVU’s recent performance clearly demonstrates.

What Lady Gaga should have done…. | KZero Worldswide

2011-10-14T14:22:00.000+01:00

What Lady Gaga should have done…. | KZero Worldswide
What Lady Gaga should have done….

Lot’s of newsflow in the last couple of days about Lady Gaga gaining an injunction against Mind Candy, owners of Moshi Monsters.

Moshi developed a character called Lady Goo Goo and placed songs onto YouTube, with plans to release a song on iTunes via their new music division Moshi Music. Here’s the news report.

Unofficial re-creations of brands inside virtual worlds are nothing new. Back in 2008 we identified this trend – primarily inside Second Life with residents (as opposed to Linden Lab) creating and in a lot of cases actually selling these virtual goods. Furthermore, the concept of users re-creating music videos as machinima is another interesting topic.

Brussels, October 3: Big European Operators Asking for Bit Tax

2011-10-14T14:05:00.000+01:00

Brussels, October 3: Big European Operators Asking for Bit Tax
A remarkable dozen CEOs of Europe's largest companies are coming to Brussels October 3 to ask Neelie Kroes to allow "new models involving traffic - or quality dependent payments at wholesale level." In other words, the telcos want to collect from Disney, Netflix, Google, Hulu and anyone else who wants to deliver bits to people in Europe. "To 'ell with net neutrality" is the message, which the companies believe will "enable a sustainable digital society." ETNO and the Financial Times are sponsors. It's branded as an "invitation-only" event but it looks like registration is pretty open.

Network Neutrality and Internet Service Provider Liability Regulation: Are the Wise Monkeys of Cyberspace Becoming Stupid? - Marsden - 2010 - Global Policy - Wiley Online Library

2011-10-14T13:59:00.000+01:00

Network Neutrality and Internet Service Provider Liability Regulation: Are the Wise Monkeys of Cyberspace Becoming Stupid? - Marsden - 2010 - Global Policy - Wiley Online Library
This is a most thoughtful account and by far one of the best that I have read in the UK.

Southern Liquer Company Ltd v SLD Liquor Manufacturers Ltd (19693/08) [2011] ZAWCHC 268 (15 June 2011)

2011-10-14T13:41:00.000+01:00

Southern Liquer Company Ltd v SLD Liquor Manufacturers Ltd (19693/08) [2011] ZAWCHC 268 (15 June 2011)
A really interesting ruling - why is it unfair?

Technology | Academics | Policy - Network Neutrality and Bank of America’s Charges

2011-10-14T10:31:00.000+01:00

Technology | Academics | Policy - Network Neutrality and Bank of America’s Charges
This is a very incisive observation, as I begin drafting my response to the recent EU Consultation exercise on Net Neutrality:
The controversy over bank fees is related to a ‘more digital’ issue — net neutrality. That issue involves the possibility that ISPs could charge different content providers different fees. So if Verizon noticed that its consumers used Netflix alot, they could charge Netflix more to access their customers. The claim is that some content providers impose more costs on ISPs and so should pay more to cover common infrastructure costs or manage congestion. Of course, if Netflix was charged more, it would pass those costs onto customers in the form of higher fees or drop off the ISP in question. While a Netflix may be able to use competitive leverage to keep those charges lower, smaller content providers may not be so lucky.
My co-author, Stephen King, suggested a way out of this dilemma for debit card transactions: set the fee to merchants at zero and require consumers to be charged explicitly at the point of sale — just like they are for ATM transactions. The idea is that consumers might hold several debit cards and so if their bank was more expensive, they could switch right there at the counter. The point is that the consumer is causing the costs on the system when they choose how to pay and so should see that. And if enterprising merchants want to absorb that fee, they can do that too; just as a consumer’s bank can do for ATM transactions. The point is that no bank can impose a fee on merchants.

Lady Gaga wins injunction against Lady Goo Goo | Music | The Guardian

2011-10-14T08:01:00.000+01:00

Lady Gaga wins injunction against Lady Goo Goo | Music | The Guardian
Lady Gaga may call her fans "little monsters" but it appears she has no love for Moshi Monsters, after taking legal action in an effort to stop the children's social network using an animated character, singer Lady Goo Goo.

Lawsuits Against Grooveshark Continue; Music Publishers Seek To Redefine The DMCA | Techdirt

2011-10-13T06:57:00.000+01:00

Lawsuits Against Grooveshark Continue; Music Publishers Seek To Redefine The DMCA | Techdirt

Grooveshark has been involved in a series of lawsuits from the recording industry and, as with the Limewire lawsuits, it looks like the music publishers are piggybacking on the labels by suing later. We've already explained why Grooveshark appears to follow the rules set out by the DMCA, but I would imagine that Grooveshark is the sort of site where judges simply won't like the idea of it, and will thus figure out a way to rule against it. That could be very problematic.

BBC - About the BBC: Retransmission fees - to pay or not to pay?

2011-10-13T06:55:00.000+01:00

BBC - About the BBC: Retransmission fees - to pay or not to pay?
It is worth noting however that there remains one area outside the BBC's control that could deliver us substantial additional annual savings. This is the area of 'retransmission fees'.

Put simply, the BBC currently pays Sky a fee so that it can be broadcast on their platform, this was something that was agreed many years ago in order to help satellite broadcasters justify the investment they needed to build their platform. The annual cost to the BBC is £10m. The question now is whether or not this money is still flowing in the right direction. A new study due to be published shortly argues that the UK is the only country of all those examined (including the US, Canada, France, Germany and Spain) that operates in this way. When you consider that the majority of viewing time remains firmly within these networks it begins to look like the balance here may be the wrong way round.

Massive fine in Denmark’s first ever ‘sampling’ copyright case

2011-10-13T06:49:00.000+01:00

Massive fine in Denmark’s first ever ‘sampling’ copyright case
What’s the cost of stealing ten seconds of music? Over a million kroner it turns out. That was the verdict at the end of Denmark’s first ever music copyright case involving sampling that ended last week.

Insanity: Judge Rules That Copyright Holder Of 10-Second Sample Deserves 84% Of The Royalties | Techdirt

2011-10-13T06:48:00.000+01:00

Insanity: Judge Rules That Copyright Holder Of 10-Second Sample Deserves 84% Of The Royalties | Techdirt
More insanity in the world of copyright, this time coming out of Denmark, where a judge has ordered the musicians behind a song to pay massive royalties to the copyright holder of a song from which they sampled a mere 10 seconds. Despite the fact that the musicians worked hard to find the copyright holder and to work out a deal, and despite the fact that it was just 10 seconds of music, and one of about 50 different elements in the song, the (apparently musically illiterate) judge decided that this sample was the major part of the song, and deserved 84% of the royalties. The article details how the musicians went to great lengths to work out a deal with the copyright holder, but ran into some problem as they dealt with one person who later turned out not to be the actual copyright holder. When they did discover the real copyright holder, again, they worked hard to come to an agreement. And, again, this is a 10-second sample, and one of dozens of elements in the song.

Facebook Says Some of Your Personal Data Is Its 'Trade Secrets or Intellectual Property' | Techdirt

2011-10-13T06:47:00.000+01:00

Facebook Says Some of Your Personal Data Is Its 'Trade Secrets or Intellectual Property' | Techdirt
Claiming that certain aspects of your personal data is "a trade secret or intellectual property of Facebook Ireland Limited or its licensors" seems pretty extraordinary. Schrems is not letting things rest there, though, and has contacted the Irish Data Protection Commissioner to pursue the matter further. Meanwhile, Facebook has released a statement on the matter:

We are cooperating fully with the Irish Data Protection Commissioner who will come to a view on Mr Schrems’ complaint in due course.

I can hardly wait for that view - and for Facebook's response if it requires the release of some "proprietary" data.

Sanctioned: P2P lawyer fined $10,000 for "staggering chutzpah"

2011-10-13T06:44:00.001+01:00

Sanctioned: P2P lawyer fined $10,000 for "staggering chutzpah"
A federal judge has fined Texas lawyer Evan Stone $10,000 for sending out subpoenas and then settlement letters to people accused of sharing a German porn film called Der Gute Onkel—all without the judge's permission.

In September 2010, Stone brought suit on behalf of Mick Haig Productions against 670 accused file-swappers, and he asked permission to take early discovery. Judge David Godbey said no; instead, Godbey brought in the Electronic Frontier Foundation and Public Citizen to represent the interests of the Does, since none of them had yet been named and therefore had no counsel to speak for them. EFF and Public Citizen lawyers soon began hearing from people who said that Verizon had turned over their information to Stone, information generally obtainable only by subpoena.

Judge blasts personal-injury lawyer for running P2P "shake down"

2011-10-13T06:40:00.001+01:00

Judge blasts personal-injury lawyer for running P2P "shake down"
Richmond, Virginia lawyer D. Wayne O'Bryan runs, as his website puts it, "a small law firm designed for personalized and professional legal services for dog attack injury and negligence claims." O'Bryan is quite clearly a personal injury lawyer, which is why it made perfect sense for him to file federal copyright lawsuits this summer on behalf of the pornographic film Gangbang Virgins... or not.

Yesterday, O'Bryan's cases went wrong as a federal judge demanded that O'Bryan show cause for why he should not be sanctioned by the court for running a “shake down” on the anonymous defendants.
See here.

UNICEF South Africa - Resources - From ‘What’s your ASLR’ to ‘Do You Wanna Go Private?’

2011-10-12T20:40:00.000+01:00

UNICEF South Africa - Resources - From ‘What’s your ASLR’ to ‘Do You Wanna Go Private?’
This paper is part of a series examining the role of social networks in the lives of youth living in developing nations. This report focuses on South Africa and presents the results of a quantitative survey conducted on MXit, the most widely used social networking platform in the country.

Argument recap: The constitutionality of zombie copyrights : SCOTUSblog

2011-10-12T11:43:00.000+01:00

Argument recap: The constitutionality of zombie copyrights : SCOTUSblog
Nice read:
Restoration, Falzone said, upsets the natural progression of public speech rights, which start with the idea/expression distinction and fair use during the term and expand to full use of a work when the limit chosen by Congress arrives. Falzone emphasized the free speech interests in performance – seeing King Lear at the Royal Shakespeare Company exposes the audience to the speech of the Royal Shakespeare Company, and, even without performance, multiple Supreme Court precedents recognize that choosing works to publish or screen is an exercise of free speech in its own right.
In conclusion, Falzone argued that the government shouldn’t be able to evade First Amendment limits via treaty. The First Amendment must not be “defined only by the perceptions, the complaints and frankly the imagination of foreign countries.”

Civil society involvement in ICANN: Strengthening future civil society influence in ICANN policymaking | Association for Progressive Communications

2011-10-12T11:28:00.000+01:00

Civil society involvement in ICANN: Strengthening future civil society influence in ICANN policymaking | Association for Progressive Communications
This is an excellent thought provoking article.

Internet Law: Cases and Problems

2011-10-12T06:13:00.003+01:00

I cannot recommend this book enough - an excellent reference source for US content.

iiNet

2011-10-12T05:49:00.001+01:00

PRIVACY advocates fear adverse consequences for consumers if Hollywood interests are handed a victory in a landmark copyright appeal in the High Court later this year.The Australian Privacy Foundation late yesterday applied to intervene in the case under High Court's amicus provisions in a bid to ensure that its ruling adequately accounts for privacy.In its application the APF argued that the matters to be considered in the appeal would have privacy impacts for "virtually every person in Australia".The High Court appeal is the final attempt by a group of 34 entertainment companies to persuade Australia's Federal Court that Perth-based iiNet should be held liable for acts of copyright infringement carried out on their networks.The case is the first of its kind to reach the trial phase in the world and is widely viewed as having major implications for the broader telecommunications industry.See here.

Copyright and Time Zones

2011-10-11T22:40:00.004+01:00

The Economist:FOR years millions of the world's computers co-ordinated time-zone differences by pointing to a not-for-profit database run by an American university professor and a government researcher. But on October 6th (at exactly 15:16:02 GMT) it was shut down, following a lawsuit claiming that the database infringed copyright.The "tz database" was used by computers running Unix, Linux, Java, Oracle, as well as some web services, to determine the correct time for a given location. It not only established current time-zone differences but historical ones, too. (Such as when Britain adopted "double summer time" during the second world war so factory lines would run longer.) Keeping the database up to date meant between 20 and 100 modifications per year, estimates Stephen Colebourne, a Java developer in London, in a blog post. The data would be published as a set of files about 15 times a year.

Steve Jobs

2011-10-11T22:29:00.001+01:00

Source:Jorge Rojas Moya

Hasbro Inc & Ors v 123 Nahrmittel GmbH & Anor [2011] EWHC 199 (Ch) (11 February 2011)

2011-10-11T20:21:00.000+01:00

Hasbro Inc & Ors v 123 Nahrmittel GmbH & Anor [2011] EWHC 199 (Ch) (11 February 2011)

The approach to the assessment of the ability of a mark to distinguish goods of one undertaking from those of other undertakings was set out by the CJEU in Case C-342/97 Lloyd Schuhfabrik Meyer & Co GmbH v. Klijsen Handel BV [1999] ECR I-3819:

"22. In determining the distinctive character of a mark and, accordingly, in assessing whether it is highly distinctive, the national court must make an overall assessment of the greater or lesser capacity of the mark to identify the goods or services for which it has been registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings (see, to that effect, judgment of 4 May 1999 in Joined Cases C-108/97 and C-109/97 Windsurfing Chiemsee v Huber and Attenberger [1999] ECR I-2779, paragraph 49).

23. In making that assessment, account should be taken, in particular, of the inherent characteristics of the mark, including the fact that it does or does not contain an element descriptive of the goods or services for which it has been registered; the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (see Windsurfing Chiemsee paragraph 51)."

The overall assessment must be performed through the eyes of the "average consumer", see, for example, Case C-299/99 Koninklijke Philips Electronics BV v Remington Consumer Products Ltd. [2002] ECR I-5475 at [65]. Yet, as the above citation from Lloyd recognises, a mark can possess distinctive character if only a proportion of the relevant public recognises that the mark means that the goods originate from a particular undertaking. The proportion of the relevant public which identifies the mark as denoting origin is a factor which the court must take into account in assessing distinctiveness. But it follows from this that the existence of a proportion of the relevant public who have not heard of the mark, or do not regard it as identifying the goods of a particular undertaking is not necessarily destructive of validity.

Mr Hobbs also submitted that there is no "single meaning rule" in trade marks of the kind that there was once thought to be, but there is no longer, in the law of malicious falsehood: see Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] EWCA Civ 609. He relied on two decisions of General Court: Case T-112/09 Icebreaker v OHIM and Case T- 72/08 Travel Service as v OHIM both of which concerned relative grounds. The latter case shows that the Court was prepared to take into account conceptual similarity "as regards that part of the relevant public which understands English" – see paragraph 57. Those cases do not have a direct bearing on whether a mark can be distinctive to some and merely descriptive to others, but do indicate that a segmented approach is permissible.

It is also important, I think, that when assessing whether a word or phrase is capable of functioning as a trade mark, one considers its use in that context. It is for this reason that the average consumer of the specific goods or services in question is brought into the assessment. It is wrong to consider the meaning of the words when used in other contexts, such as, in the present case, in recipes for home made play dough or craft literature. Moreover, here as elsewhere dictionaries are a dangerous guide if used in isolation. The question in every case is not the definition of words, but what the average consumer would understand, if he or she saw the mark in context, that the words were being used to mean.

It is plain that the weight to be given to the various factors in Lloyd can also vary from case to case. It may be harder for a trader to establish that a prima facie descriptive term has acquired a distinctive character in circumstances where it is the monopoly supplier. In the Philips case cited above, the referring court was held at [51] to have asked, in essence,

"whether, where a trader has been the only supplier of particular goods to the market, extensive use of a sign which consists of the shape of those goods is sufficient to give the sign distinctive character of the purposes of article 3(3) of the Directive in circumstances where, as a result of that use, a substantial proportion of the relevant class of persons associates shape that trade, and no other undertaking, or believes the goods that show come from a trader in the absence of a statement to the contrary."

Navitaire Inc v Easyjet Airline Co. & Anor [2004] EWHC 1725 (Ch) (30 July 2004)

2011-10-11T20:16:00.000+01:00

Navitaire Inc v Easyjet Airline Co. & Anor [2004] EWHC 1725 (Ch) (30 July 2004)
As I have indicated above, the case advanced by Navitaire is based on the fact that the functions of OpenRes and eRes are identical to the user so far as the aspects of the system of interest to easyJet are concerned. The case had its origin in the suggestion that what was called the 'business logic' of OpenRes had been appropriated.

During the course of her cross-examination on this subject, Dr Hunt gave this important answer.

A. I think the problem with "Business Logic" and .... Perhaps we can just take a step back to where it came from. When I discussed this case with my instructing solicitors, we had drawn the lines that surround commands and screen layouts very tightly. Commands were, in my head anyway, really quite a limited feature. They are the text of the commands and what they do, but not in a detailed sense of what they do. Similarly, the screen layout is just the screen layout and very little else. It was obvious to me that there was something that has been copied in this case which is more than that. Now, I used the term "Business Logic". It may have been an error to use the term "Business Logic" and not pin it down more tightly at that stage, but it seemed to me that there is something which is the interaction between the commands and what you get and how you get the right data out at the right time in the process which I dubbed "Business Logic". "Business logic" does not have, like a lot of computer terms, a very precise meaning. It is not something that you would call a term of art. It does tend to be used.

As will appear from what I have said, I agree that the commands were really quite a limited feature. The question is whether the 'something else that has been copied' over and above the limited features of commands and screens is something Navitaire may protect from being copied. It seems to me that the following list sets out the matters copied over and above the comparatively limited aspects of the user interface:

i) The relationship between the commands and the screens. No doubt this is obvious, but it is worth pointing out that the screens and commands do not exist in a vacuum. They are connected by invisible chains, and I do not think that in this context they should be considered separately.

ii) The ability to carry out the operations of reservation, check-in, irregular operations and so on, with much the same commands and screens with a successful result.

iii) Making the same data about all transactions as OpenRes provides available, and in substantially the same form.

iv) At easyJet, at least, accordingly providing a 'drop-in' replacement for OpenRes.

This formulation concentrates on similarities and ignores differences. It is basic to the discussion that all the processing carried out by the systems, including background processing, is different: and it is accepted that the error processing, an essential feature of any program, is also different.

Dr Hunt's use of the term 'Business Logic' for what was taken was bound to run into problems, because it seems to assume that one can identify in the source code programming logic that in some way reflects the business logic. This assumption was explicit in Dr Hunt's original reference to pseudocode in section 3 of her April report, which was dedicated to the question of what business logic was. It is clear from her cross-examination that it was she who was responsible for the reference to pseudocode. This gave rise to a dispute with Dr Chiu that is enlightening.

I shall return to first principles. For present purposes, a computer running a particular program is a deterministic machine. A particular input to the machine will produce a predictable result derived from all previous inputs to the machine. If therefore one studies a machine in operation, it should be possible to identify the machine's response to all possible sequences of inputs, and so construct a new machine that operates to give the same outputs for the same sequences of inputs by writing an appropriate program. Navitaire contend that if this is done, it follows axiomatically that any copyright in the source code for the first machine must be infringed in writing the second program. Indeed, it was urged on me at an earlier hearing that it was unnecessary to consider any of the source code for the OpenRes system in determining whether there had been copying of a substantial part of the copyright(s) subsisting in the source code for it.

There is no doubt that easyJet and BulletProof had no access to the source code of OpenRes, and it is not in dispute that in languages used, actual code and architecture (subject to the claim in respect of the database) the systems are quite different. There is no suggestion that the eRes code represents a translation or adaptation of the OpenRes code. The term 'non-textual copying' might be replaced by the more accurate 'copying without access to the thing copied, directly or indirectly'.

The claim depends first upon the contention that the manner in which a machine behaves under the control of a program represents part of the skill and labour that went into the program. This is not an unreasonable observation. On the contrary, it is the whole object of the programmer to get the computer to behave in the required manner.

To copy an operating machine in this manner avoids the need to conduct any systems analysis or the production of functional specifications. Thus, it may be observed that although the copyist has not avoided the need to write software to achieve the desired result, he has avoided the need to identify the result by any of the normal methods of analysis that either precede or accompany the writing of a substantial piece of business software. Dr Hunt described this process as follows:

Many different methodologies have been defined in the IT industry to help standardise and improve the way that these tasks are done and how the information they produce is presented. In some methodologies, such as SSADM (Structured Systems Design and Analysis Methodology) the assumption is that all details of a system will be documented, as a result of interviews with relevant client staff, before programming starts. In others, such as DSDM (Dynamic System Development Method) and MSF (Microsoft Solutions Framework) the assumption is that while the overall requirements will be set early on the details of how the system is to behave will be established in a series of iterative cycles, usually by building prototypes that are discussed with business users. It is also common, though not necessarily advisable, for developers to build systems without doing formal data analysis or business process analysis. This does not mean that the work involved is not done, just that it is done in parallel with coding.

In this connection, it may be noted in passing that no such formal analysis was ever carried out in the design of OpenRes. It is clear from the responses of David Evans, Greg McDaniel and Mike Padgen that they based OpenRes upon their previous experience and upon the comments and requests received from customers. It is not unfair to say that Navitaire object to BulletProof's and easyJet's acquiring the greater part of their experience from an examination of OpenRes in use alone. However, shorn of the specific user interface features that I have discussed, the operation of OpenRes cannot be distinguished from the manner in which other booking systems operate. Ms Antry, who was responsible for the design of the system was cross-examined on this point:

Q. …You say this in the sentence bridging pages: "Most reservation systems support basic functionality including creation of new bookings, making changes to existing bookings, cancelling bookings, and other general reservations functions as required by the airline". I want to ask you a little bit about what is involved in this basic functionality that you are talking about there and specifically what is involved in creating a new booking. Do you understand? A. Mmm-hmm.

Q. It is common in the industry to have a command line interface, is it not? A. I do not have direct knowledge of that. I have worked with people in the industry who have used command line or screen mode or fill in the blank type of interfaces.

Q. But you are aware that quite a lot of systems out there have command lines interfaces. A. I am aware that there are a number of them, yes.

Q. What that means is that they will prompt the user to enter a command, parse the command once entered to see what sort of command it is and check the validity of the parameters entered. A. I do not know that that is the process they go through.

Q. Thinking about creating a new booking, the user will generally start by entering in an availability command to see what flights are available. Yes? A. That is a way it can be done, yes.

Q. The system will then search for flights that depart on the requested departure date and return on the requested return date or within a specified window? A. Yes, I would guess that it would search for the parameters input by the user.

Q. The matches will then be displayed to the user, typically in date order with a numeric index? A. I do not know exactly how the matches would be displayed, but the data will be returned to the user.

Q. Assuming that one of the flights is suitable for the customer who wishes to make the reservation, the user will enter a command to book so many seats in such and such a class on that flight. A. My understanding is, yes, they can request a number of seats.

Q. The system will then check to see if the flight selected has enough seats available in the requested class. A. My understanding, yes.

Q. If so, the system will reduce the number of seats available on the flight by the number of seats sold and store details of the booking in working storage. A. That is fairly accurate description of Open Skies, but based on my discussions with people at Sabre and WorldSpan, that does not sound familiar from what they have told me.

Q. Is that not something that any reservation system is going to need to do? A. Not in that specific time. My understanding from Sabre is that they do not store anything until all the data from the reservation has been entered.

Q. I see. But certainly the system will need to reduce the number of seats available on the flight by the number of seats sold? A. At some point in time, yes.

Q. At some point in time, indeed. Next the user will enter a series of commands to enter the passenger names and other required details. A. Yes, other information like they would request a price and enter the passenger information and payment information.

Q. And again those would be added to working storage? A. Again, that is how Open Skies typically works, but I do not know. Like I have said, with Sabre, my understanding is that they wait and do that until they do the ER or the end record and transaction.

Q. It would not be surprising if there were other systems that used working storage in that way? A. No. I am sure there are probably.

Q. And typically there will be a running display of what has been entered and a prompt if any required information has been omitted? A. That could be probable.

Q. Once all the required details have been entered, the user enters an end command and the system transfers all the booking details to main storage? A. That sounds reasonable, yes.

Q. At that point you have a booking and the user can go on to some other task. You do not need to do anything more. A. As long as they have entered everything as far as selecting a price for the seat, because until they price it, the customer cannot fly on it.

Q. Indeed, so one assumes that the seat has been priced at some stage in the process. A. Yes.

The overall functionality, from a business perspective, is what is accepted by Ms Antry in this passage. The steps are, in essence, check flights–check availability of seats–reserve–take passenger details–take payment details–record transaction. The seats thus sold must be made unavailable for future passengers, and that may be done at a number of stages in the transaction (including the initial grab: they can be returned to stock if the transaction is ultimately not proceeded with). This is common to reservation systems, and makes up what Dr Hunt calls the 'core' functions of the system.

The problem, therefore, if one is to arrive at a finding of infringement is to settle on a level of abstraction that describes something that is not merely inherent in the nature of the business function to be performed by the software, is taken by the defendants, represents the skill and labour of the designers and programmers but goes wider than the details of the command set and the screen displays, acknowledged by Dr Hunt to be a limited feature. Since copyright in computer programs is a literary copyright, the natural approach for Navitaire is to base its contentions on the analogy between the function of a computer program and the plot of a literary work. Mr Carr QC employs the law in this area as a cornerstone of his submissions, and it is necessary to consider the cases.

In Designer's Guild v Russell Williams Textiles Ltd [2000] 1 WLR 2416, Lord Hoffman says at 2422:

It is often said, as Morritt L.J. said in this case, that copyright subsists not in ideas but in the form in which the ideas are expressed. The distinction between expression and ideas finds a place in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (O.J. 1994 L. 336, p. 213), to which the United Kingdom is a party (see article 9.2: "Copyright protection shall extend to expressions and not to ideas ..."). Nevertheless, it needs to be handled with care. What does it mean? As Lord Hailsham of St. Marylebone said in L.B. (Plastics) Ltd v. Swish Products Ltd. [1979] R.P.C. 551, 629, "it all depends on what you mean by 'ideas.'"

Plainly there can be no copyright in an idea which is merely in the head, which has not been expressed in copyrightable form, as a literary, dramatic, musical or artistic work. But the distinction between ideas and expression cannot mean anything so trivial as that. On the other hand, every element in the expression of an artistic work (unless it got there by accident or compulsion) is the expression of an idea on the part of the author. It represents her choice to paint stripes rather than polka dots, flowers rather than tadpoles, use one colour and brush technique rather than another, and so on. The expression of these ideas is protected, both as a cumulative whole and also to the extent to which they form a "substantial part" of the work. Although the term "substantial part" might suggest a quantitative test, or at least the ability to identify some discrete part which, on quantitative or qualitative grounds, can be regarded as substantial, it is clear upon the authorities that neither is the correct test. Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 W.L.R. 273 establishes that substantiality depends upon quality rather than quantity (Lord Reid, at p. 276, Lord Evershed, at p. 283, Lord Hodson, at p. 288, Lord Pearce, at p. 293). And there are numerous authorities which show that the "part" which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part. That is what the judge found to have been copied in this case. Or to take another example, the original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original. If one asks what is being protected in such a case, it is difficult to give any answer except that it is an idea expressed in the copyright work.

This passage encapsulates the state of the law. Mr Carr QC submits that Lord Hoffmann is describing a case of 'non-textual copying'. That is no doubt so, if the meaning of those words is merely that the defendant has reproduced the copyright work in a different form, as in Harman Pictures v Osborne [1967] 1 WLR 723 where the similarity in language was slight but the choice of incidents the same, or in Holland v Vivian van Damm Productions Ltd [1936-45] MacG CC 69, where a ballet was held to infringe the copyright in a short story by Oscar Wilde. This principle extends to compilation cases: Jarrold v Houlston (1857) 3 K&J 708 is relied on by Mr Carr. This was a case in which the plaintiff had written a work which in the words of Page Wood V-C 'collects and reduces into the form of a systematic course of instruction those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to those questions, and explanations of those phenomena.' He had provided answers to those questions out of works consulted by him and had arranged the whole 'under certain heads and in a scientific form'. Page Wood V-C expressed the principle thus:

…if, knowing that a person whose work is protected by copyright has, with considerable labour, compiled from various sources a work in itself not original, but which he has digested and arranged, you, being minded to compile a work of a like description, instead of taking the pains of searching into all the common sources, and obtaining your subject matter from them, avail yourself of the labour of your predecessor, adopt his arrangements, adopt moreover the very questions he has asked, or adopt them with but a light degree of colourable imitation, and thus save yourself pains and labour by availing yourself of the pains and labour which he has employed, that I take to be illegitimate use.

Mr Carr QC says that this is a description of non-textual copying. That is not so as Houlston had taken the questions and the selection directly from the copyright work. But assume that he had not taken the questions, but merely the arrangement of and selection from the primary sources. That would still have been infringement: Macmillan v Cooper (1923) 93 LJPC 113, and that would be so even if the material abstracted from the prior works had been summarized or abstracted in different terms, provided that the selection had been copied.

What differentiates the present case from those to which I have referred above is that the copyist did not have access to the copyright work: in Jarrold v Houlston the copyist had access to the copyright work and used it. It may be noted that as he initially denied copying altogether it was subsequently difficult for him to identify convincingly the parts he had not copied: compare the Ibcos case (above). Two other cases are particularly relied on by Mr Carr. The first is John Richardson Computers v Flanders [1993] FSR 497 (Ferris J). This is a difficult case to summarise, but for present purposes I need only refer to a few salient facts. Mr Flanders, the defendant, had written the program the copyright in which was asserted against his new program. It was accepted that he did not have access to a copy of his earlier work when he wrote the later; and the judge rejected any contention of deliberate copying. He said this:

In short, I do not accept the evidence I have discussed under heads (i) and (ii) in this section of my judgment as establishing deliberate copying of the [earlier] program by Mr Flanders. But the fact remains that he had, as I have said, an intimate knowledge of the [earlier] program at all levels of abstraction (to use the term employed in Nichols v Universal Pictures Corporation (1930) 45 F (2d) 119 and other United States authorities that I have mentioned) and it is possible that he has, unconsciously or unintentionally or in some other way which he did not consider to be objectionable, made use of that knowledge in a way that amounts to copying in the context of breach of copyright. It is that possibility that I must evaluate in appraising the particular similarities that I have identified. (my emphasis)

Seventeen similarities were relied on. Nearly all of them were rejected, but the ones which survived included the 'line editor'. Ferris J dealt with this feature in the following way.

I find it impossible not to conclude that the line editor in the [later] program has substantially been copied from the line editor in the [earlier] program. If all that had been copied was the concept of a line editor that would not have mattered for present purposes, being a mere adoption of an idea. But similarities such as the obscuration of the text which is to be amended, the message "Insert to edit" in one case and "Copy to edit" in the other and, above all, the idiosyncratic restoration of text which is merely deleted and not replaced demonstrate that there has been copying of expression as well as idea.

The reference to 'copying of expression as well as idea' is a clear echo of the United States authorities discussed at length by Ferris J elsewhere in his judgment whose employment for this purpose was criticised by Jacob J in the Ibcos case, itself relied on by Mr Carr. But it is quite correct, as he submits, that it is possible to read the foregoing passage as stating that the concept of 'expression' as distinct from 'idea' extended to the manner in which the programmed machine worked, in detail. If this was what Ferris J was saying, then I would respectfully suggest that it is based upon a misapprehension as to the meaning of 'expression' in this context. But I do not need to go into this in detail, because I would with respect accept what is said by Jacob J in Ibcos:

The true position is that where an "idea" is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe. But if the "idea" is detailed, then there may be infringement. It is a question of degree. The same applies whether the work is functional or not, and whether visual or literary. In the latter field the taking of a plot (i.e. the "idea") of a novel or play can certainly infringe—if that plot is a substantial part of the copyright work. As Judge Learned Hand said (speaking of the distinction between "idea" and "expression"):Nobody has ever been able to fix that boundary and nobody ever can."[16]

This does not answer the question with which I am confronted, which is peculiar, I believe, to computer programs. The reason it is a new problem is that two completely different computer programs can produce an identical result: not a result identical at some level of abstraction but identical at any level of abstraction. This is so even if the author of one has no access at all to the other but only to its results. The analogy with a plot is for this reason a poor one. It is a poor one for other reasons as well. To say these programs possess a plot is precisely like saying that the book of instructions for a booking clerk acting manually has a plot: but a book of instructions has no theme, no events, and does not have a narrative flow. Nor does a computer program, particularly one whose behaviour depends upon the history of its inputs in any given transaction. It does not have a plot, merely a series of pre-defined operations intended to achieve the desired result in response to the requests of the customer.

The view in favour of Navitaire 's case is expressed concisely by the authors of The Modern Law in paragraph 34.64 (I have assumed that when they speak of 'obtains…from the original program' they do not mean obtain directly, but indirectly from watching the program work):

For instance, the writing of a financing program may require as part of the task a careful elucidation of the relevant tax regulations—so that they may be reduced to a series of unambiguous statements—and it will be evident to any lawyer that this alone will probably involve a very large amount of work. A competitor might write a program of his own in a different computer language and arranged in a different way and with many improvements of his own but if he obtains the rules for calculating the tax from the original program instead of working these out for himself it is hard to see why he should not be considered a plagiarist.

There is a counter-example that throws some light on the nature of the problem. Take the example of a chef who invents a new pudding. After a lot of work he gets a satisfactory result, and thereafter his puddings are always made using his written recipe, undoubtedly a literary work. Along comes a competitor who likes the pudding and resolves to make it himself. Ultimately, after much culinary labour, he succeeds in emulating the earlier result, and he records his recipe. Is the later recipe an infringement of the earlier, as the end result, the plot and purpose of both (the pudding) is the same? I believe the answer is no.

I think that the answer to the problem is to be gathered from the passage in Lord Hoffmann's speech immediately following that quoted above (paragraph 119) from the Designers' Guild case:

My Lords, if one examines the cases in which the distinction between ideas and the expression of ideas has been given effect, I think it will be found that they support two quite distinct propositions. The first is that a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. It is on this ground that, for example, a literary work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. The same is true of an inventive concept expressed in an artistic work. However striking or original it may be, others are (in the absence of patent protection) free to express it in works of their own: see Kleeneze Ltd. v. D.R.G. (U.K.) Ltd. [1984] F.S.R. 399. The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work. Kenrick & Co. v. Lawrence & Co. (1890) 25 Q.B.D. 99 is a well known example. It is on this ground that the mere notion of combining stripes and flowers would not have amounted to a substantial part of the plaintiff's work. At that level of abstraction, the idea, though expressed in the design, would not have represented sufficient of the author's skill and labour as to attract copyright protection.

Generally speaking, in cases of artistic copyright, the more abstract and simple the copied idea, the less likely it is to constitute a substantial part. Originality, in the sense of the contribution of the author's skill and labour, tends to lie in the detail with which the basic idea is presented. Copyright law protects foxes better than hedgehogs. In this case, however, the elements which the judge found to have been copied went well beyond the banal and I think that the judge was amply justified in deciding that they formed a substantial part of the originality of the work.

The questions in the present case are both a lack of substantiality and the nature of the skill and labour to be protected. Navitaire 's computer program invites input in a manner excluded from copyright protection, outputs its results in a form excluded from copyright protection and creates a record of a reservation in the name of a particular passenger on a particular flight. What is left when the interface aspects of the case are disregarded is the business function of carrying out the transaction and creating the record, because none of the code was read or copied by the defendants. It is right that those responsible for devising OpenRes envisaged this as the end result for their program: but that is not relevant skill and labour. In my judgment, this claim for non-textual copying should fail.

I do not come to this conclusion with any regret. If it is the policy of the Software Directive to exclude both computer languages and the underlying ideas of the interfaces from protection, then it should not be possible to circumvent these exclusions by seeking to identify some overall function or functions that it is the sole purpose of the interface to invoke and relying on those instead. As a matter of policy also, it seems to me that to permit the 'business logic' of a program to attract protection through the literary copyright afforded to the program itself is an unjustifiable extension of copyright protection into a field where I am far from satisfied that it is appropriate.

I am also confirmed in my view by the evident difficulty that the formulation of the 'non-textual copying' or 'business logic' case has caused the claimant. The claim was first set out by Dr Hunt in her April, May and June reports and it became clear that her approach to business logic involved creating an abstract view of the functioning of the software at many different levels, together with disregard for features of the systems that were in fact different. She concentrated on the user interface aspect, but ignored the background processing and error processing. By the end of the trial, the claim had undergone a further metamorphosis, being characterised as a claim in respect of the 'dynamic user interface'. Although a fine concatenation of buzzwords, this phrase is difficult to pin down as a matter of meaning. Although it was mentioned once by Mr Carr at the outset of the trial it appeared little (it is not used by Dr Hunt is her reports) until it was put at the centre of Navitaire 's case in its submissions as to the material findings of fact. What Navitaire say is that they

…rely upon the objective similarity between the eRes dynamic user interface and the OpenRes dynamic user interface as set out in the 2nd May 2003 and 24th June 2003 reports, [as confirmed by the Defendants' evidence] together with Dr Hunt's 3rd July 2003 Indications of Copying Report section 4 (for the dynamic user interface) and section 8 (for the History application).

I think that this is just a repetition of the case advanced on the user interface that I have dealt with. It adds nothing.

SAS Institute Inc v World Programming Ltd [2010] EWHC 1829 (Ch) (23 July 2010)

2011-10-11T20:11:00.001+01:00

SAS Institute Inc v World Programming Ltd [2010] EWHC 1829 (Ch) (23 July 2010)
As counsel for SAS Institute submitted, the starting point for consideration of these questions is that Article 10(1) of TRIPS, Article 4 of the WIPO Copyright Treaty and Article 1(1) of the Software Directive all provide that computer programs are to be protected as literary works within the Berne Convention. Thus, subject to specific exceptions such as those contained in Articles 5 and 6 of the Software Directive, computer programs are protected in the same manner and to the same extent as any other literary work.

It is nevertheless inescapable, for the reasons so eloquently explained by Pumfrey J in Navitaire, in particular at [112] and [125], that computer programs are different from other kinds of literary works and present peculiar problems for copyright law. As in that case, so too in this one, counsel for SAS Institute sought to rely upon doctrines established in relation to other kinds of literary work. While I agree that the general principles of copyright law must be applied to computer programs, it does not necessarily follow that particular doctrines which were established in relation to other types of literary works can be applied to computer programs, or applied in the same way.

lthough counsel referred to all of the speeches in Ladbroke, it is sufficient to cite what Lord Reid said at 276-277:

"The first question to be determined is whether or to what extent copyright attaches to these coupons. The respondents say that a coupon must be regarded as a single work and that as such it is protected by copyright. The appellants seek to dissect the coupon. They would not only dissect it into the 16 lists, but they would further dissect each list into heading, selection of matches, and statement of odds offered for the various kinds of bets. They admit that there is copyright in the selection and in the statements of odds offered: they can safely do that because there they did not copy. But they deny any copyright as regards the rest of the coupon.

The Copyright Act, 1956, provides, by section 2, that copyright shall subsist in every original literary work and, by section 48, that literary work includes any written table or compilation. I have no doubt that the coupon must be treated as a single compilation. The appellants' dissection theory is derived from some statements in infringement cases and I must, therefore, examine at this point the law regarding infringement. Copyright gives the exclusive right to do certain things including 'reproducing the work in any material form' (section 2 (5)), and reproduction includes reproduction of a substantial part of the work (section 49 (1)). Broadly, reproduction means copying, and does not include cases where an author or compiler produces a substantially similar result by independent work without copying. And, if he does copy, the question whether he has copied a substantial part depends much more on the quality than on the quantity of what he has taken. One test may be whether the part which he has taken is novel or striking, or is merely a commonplace arrangement of ordinary words or well-known data. So it may sometimes be a convenient short cut to ask whether the part taken could by itself be the subject of copyright. But, in my view, that is only a short cut, and the more correct approach is first to determine whether the plaintiffs' work as a whole is 'original' and protected by copyright, and then to inquire whether the part taken by the defendant is substantial.

A wrong result can easily be reached if one begins by dissecting the plaintiffs' work and asking, could section A be the subject of copyright if it stood by itself, could section B be protected if it stood by itself, and so on. To my mind, it does not follow that, because the fragments taken separately would not be copyright, therefore the whole cannot be. Indeed, it has often been recognised that if sufficient skill and judgment have been exercised in devising the arrangements of the whole work, that can be an important or even decisive element in deciding whether the work as a whole is protected by copyright."

In Designers' Guild Lord Hoffmann criticised the Court of Appeal for having engaged in dissection of the respective designs, saying at [19]:

"The exercise in dissection also, as it seems to me, involved two errors. First, it ignored substantial parts of the judge's findings on what had been copied and, secondly, it dealt with the copied features piece-meal instead of considering, as the judge had done, their cumulative effect."

In my judgment neither of these passages bears the weight that counsel for SAS Institute placed on them. Lord Reid's speech was primarily directed to the fallacy of considering the constituent parts of a work when deciding whether the whole work is original, particularly in a case where the work is a compilation. Lord Hoffmann's speech was directed to the fallacy of considering the parts reproduced in isolation and not as a whole. It is trite law that, in determining whether the defendant has reproduced a substantial part of the copyright, the court must focus on the quality of the parts that have been reproduced. As Lord Hoffmann (with whom the other members of the House of Lords agreed) explained in Newspaper Licensing Agency Ltd v Marks & Spencer plc [2001] UKHL 38, [2003] 1 AC 551 at [19] (emphasis added):

"The House of Lords decided in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 that the question of substantiality is a matter of quality rather than quantity. The relevant passages are too well known to require citation: see Lord Reid, at p 276, Lord Evershed, at p 283, Lord Hodson, at p 288 and Lord Pearce, at p 293. But what quality is one looking for? That question, as it seems to me, must be answered by reference to the reason why the work is given copyright protection. In literary copyright, for example, copyright is conferred (irrespective of literary merit) upon an original literary work. It follows that the quality relevant for the purposes of substantiality is the literary originality of that which has been copied. In the case of an artistic work, it is the artistic originality of that which has been copied. So, in the recent case of Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC) [2000] 1 WLR 2416, the House decided that although not the smallest part of a fabric design had been reproduced with anything approaching photographic fidelity, the copying of certain of the ideas expressed in that design which, in their conjoined expression, had involved original artistic skill and labour, constituted the copying of a substantial part of the artistic work."

This passage was strictly obiter, but it plainly represents the considered view of the House of Lords. In any event, the Court of Justice has now adopted the same approach in Infopaq in holding at [48] that an extract of 11 words from a literary work constituted a substantial part of the work if the extract contained an element of the work which expressed the author's own intellectual creation. It follows from this that, when considering whether a substantial part has been reproduced, it is necessary to focus upon what has been reproduced and to consider whether it expresses the author's own intellectual creation. To that extent, some dissection is not merely permissible, but required. On the other hand, the Court of Justice also held in Infopaq at [49] that it is necessary to consider the cumulative effect of what has been reproduced.

Bambino Mio Ltd v Cazitex [2009] EWCA Civ 922 (29 July 2009)

2011-10-11T20:09:00.000+01:00

Bambino Mio Ltd v Cazitex [2009] EWCA Civ 922 (29 July 2009)
This is an appeal from an order made on 13 November 2008 by HHJ Pelling QC, sitting as a judge of the High Court in trademark proceedings. The claimant, Bambino Mio Ltd, is the owner of the registered UK trademark 2324213 for the wordmark "Bambino Mio" ("the mark") in respect of goods in classes 3, 6, 21 and 25.

The defendant, Cazitex MV, a Belgian company, manufactures and sells through agents in the United Kingdom reusable nappies falling within class 25. For a few months at the beginning of 2007, that product was sold under the name or sign "Bambineo" ("the sign"). Following objection by the claimant in a letter from its trademark agents dated 19 March 2007, the defendant informed the claimant that it would discontinue use of that sign. The judge found that from 23 May 2007 the defendant's product was sold in the United Kingdom under a different name, "Bambinex", in respect of which the claimant has made no objection.

Nevertheless the present proceedings for infringement were commenced on 5 June 2007 claiming an injunction, delivery up or destruction of the allegedly infringing goods and an inquiry as to damages or an account of profits. The judge observed, at paragraph 1 of his judgment, that the only substantive remedy sought at the trial was an inquiry or an account. On the evidence of the defendant's managing director, the sales of the defendant's product under the name "Bambino" in the first few months of 2007 were commercially insignificant and not generating a profit.

Nintendo Company Ltd & Anor v Playables Ltd & Anor [2010] EWHC 1932 (Ch) (28 July 2010)

2011-10-11T20:07:00.000+01:00

Nintendo Company Ltd & Anor v Playables Ltd & Anor [2010] EWHC 1932 (Ch) (28 July 2010)
This is an action in which the claimants ("Specsavers"), a well known chain of high street opticians, claim that the defendant ("Asda"), the well known supermarket (and which also runs optician's stores in some of its larger supermarkets), has infringed its trade marks and has been guilty of passing off. Asda denies that, and also attacks one of Specsavers' marks for non-use. Although there are 4 Specsavers companies who are claimants in this case, it is unnecessary to distinguish between them for the purposes of this action and I shall treat them as one.

Nintendo Company Ltd & Anor v Playables Ltd & Anor [2010] EWHC 1932 (Ch) (28 July 2010)

2011-10-11T20:06:00.000+01:00

Nintendo Company Ltd & Anor v Playables Ltd & Anor [2010] EWHC 1932 (Ch) (28 July 2010)
This is an application for summary judgment in an action concerned with copyright infringement and the avoidance of copy-protection devices. The first claimant is the designer, manufacturer and distributor of the Nintendo DS games console, and the games that go with it. The second claimant acts as the European distributor of the games. The first defendant is a company under the control of the second defendant.

This case concerns a number of different types of device imported and dealt in by the Defendants (the accused devices) which enable Nintendo DS users to play unlawful copies of Nintendo DS games which they have downloaded using the Internet. Nintendo refer to these devices as "game copiers". The defendants have imported the accused devices on a very large scale. HMRC and Trading Standards have seized more than 165,000 game copiers intended for the defendants. The economic effect on Nintendo of the trade in these devices is substantial as each accused device can store and play copies of many Nintendo DS games. Genuine Nintendo DS games may retail for £20 to £30 on release.

Jean Christian Perfumes Ltd & Anor v Thakrar (t/a Brand Distributor or Brand Distributors Ltd) [2011] EWHC 1383 (Ch) (27 May 2011)

2011-10-11T20:03:00.001+01:00

Jean Christian Perfumes Ltd & Anor v Thakrar (t/a Brand Distributor or Brand Distributors Ltd) [2011] EWHC 1383 (Ch) (27 May 2011)
Regarding whether oral use of a trade mark can amount to infringing use, the usual texts books seem to say that such is the case and it appears to be implicit in the Court of Justice's decision in C-2/00 Holterhoff [2002] FSR 52. Furthermore, it is clear that sounds can be registered as Community trade marks (so long as they are capable of being represented graphically), so it would be peculiar if oral use of a mark could not amount to an infringement. Article 9(2) gives examples of use which may amount to infringement and there is nothing to suggest oral use is excluded. I am satisfied that oral use of a mark can amount to infringement of the rights granted by registration of a Community trade mark.

Newzbin 2 operators launch software to counteract site-blocking measures, reports say

2011-10-10T08:40:00.001+01:00

Newzbin 2 operators launch software to counteract site-blocking measures, reports say

A spokesman for BT told Out-Law.com that the company was due back in court on October 14 to thrash out the precise terms of the court order. He said that it was difficult for the company to comment on a "hypothetical" basis until the terms were decided.

A spokesperson for the MPA said that the organisation would not comment on BT's blocking measures until the exact terms of the High Court's blocking order have been determined.

The MPA previously won an order preventing the original Newzbin site from linking to free content. The site later went into administration, and a new version was set up outside the UK's jurisdiction.

Identity Theft

2011-10-10T08:39:00.004+01:00

Informative Post by SusanAs Wikipedia notes, identity theft is basically “a form of fraud . . . in which someone pretends to be someone else by assuming that person's identity, typically in order to access resources or obtain credit and other benefits in that person's name.” This post is about an identity theft case involving a juvenile and an email password.The case is In re Rolando S., 197 Cal.App.4th 936, 129 Cal.Rptr.3d 49 (California Court of Appeals 2011) and this, very generally, is how it arose:[Rolando S.] was one of several recipients of an unsolicited text message providing the password to the victim's email account. [He] used the victim's email password and account to gain access to her Facebook account, where he posted, in her name, prurient messages on two of her male friends' pages (walls) and altered her profile description in a vulgar manner. The victim found out about the messages and informed her father, who removed the messages from her account and later called the police.In re Rolando S., supra.Rolando S. “admitted to the police that he posted the messages from the victim's Facebook account and altered her profile.” In re Rolando S., supra. A juvenile petition was then filed against him, alleging that he committed one count of identity theft under California Penal Code § 530.5(a). In re Rolando S., supra.

Insider Threats

2011-10-10T08:37:00.001+01:00

We are the weakest link.Hacking attacks against companies are growing bigger and bolder—witness a string of high-profile breaches this year at Sony Corp., Citigroup Inc. and others. But gone are the days when hackers would simply find holes in corporate networks to steal valuable data. Large companies have grown wise to the threat of hacking, and have spent the past 30 years hardening the perimeters of their networks with upgraded technology. Read further.

Mitigate the Insider Employee Threat – Control Sensitive Information at the Source

2011-10-10T08:34:00.000+01:00

Mitigate the Insider Employee Threat – Control Sensitive Information at the SourceOrganizations need to understand the individuals, roles or groups involved in communicating content. By understanding the identity of who's communicating, organizations are able to take a precise approach to controlling information handling as opposed to broad brush strokes that typically results in critical business flow being interrupted.

By taking the proper steps to protect information at its source businesses are able to reduce the risk of sensitive information getting into the wrong hands and eventually leaking outside the organization - whether it's through social media, mobile devices or even word of mouth.

Has Spring arrived early for Interflora?

2011-10-10T08:32:00.000+01:00

Has Spring arrived early for Interflora?
Springtime is the time for flowers, which makes it totally appropriate that the first little buds should begin to appear in Case C-323/09 Interflora Inc and Interflora British Unit v Marks & Spencer plc and Flowers Direct Online Limited, a reference to the Court of the European Union (ECJ) for a preliminary ruling from the High Court of Justice of England and Wales. Today's budding jurisprudence comes in the form of an Opinion from Advocate General Niilo Jääskinen (all the way from Finland where, the Kat learns, spging has yet to arrive: it's currently freezing and the temperature feels like minus 7 Celsius).

Essentially, the problem here was that Marks & Spencer bought the word 'interflora' as a keyword for Google's AdWord paid referencing service, so that people who were looking for the world-famous Interflora flower delivery service would find an advertisement for Marks & Spencer's rival service at the top of the non-organic, paid-for search results. This did not make Interflora very happy since (i) they were proprietors of the hugely famous INTERFLORA trade mark, (ii) internet users who keyed in "interflora" as a search term were obviously looking for their website and not Marks & Spencer and (iii) worst of all, this was just before the onset of St Valentine's Day, which is one of the biggest events of the year for the flower trade. This just had to be trade mark infringement, said Interflora. The ECJ's ruling in Google France that neither the sale nor the use of terms protected by trade marks as keywords constituted a per se trade mark infringement didn't help them -- but that was a "5(1)(a)" case, where same goods/same mark (double identity) infringement was alleged. Here Interflora had a '5(2)' argument, based on a use which allegedly damaged the mark's reputation or distinctive character without due cause.