Naked Law

Get a Life

An avatar appears to have entangled himself in a legal dispute after allegedly infringing trade marks by launching an art gallery called ‘SLart’ on Linden Lab’s ‘Second Life’ 3D virtual world.

Linden Lab have claimed the right to use the mark "SL" and have informed the avatar that he can not use it unless it is followed by a space and two generic nouns. Meanwhile an artist and publisher has issued proceedings against the avatar and Linden Lab for infringement of its registered US "SLART" trade mark.

One of the first questions to be answered by the US courts, is the extent to which their jurisdiction covers actions in cyberspace. Second Life’s terms of service state that the relationship between users and Linden Labs is subject to US law, however the extent to which this has effect in practice is questionable, especially when the dispute involves a third party (for example the avatar). It could be argued that because Linden Labs' servers are based in the US, the applicable law is in fact US law. However, this would not always make sense, for example if someone in Australia wanted to sue an individual in Japan for online infringement of intellectual property.

It will be interesting to see how much jurisdiction the US courts think they have over the virtual world!

Costs driven up in Highways procurement

We frequently see both the costs and timescales of public sector procurements extended beyond the original intentions of the relevant organisations.  This can be down to a number of factors, and generally a combination of several: over-ambitious timescales (often driven by organisational or national politics); lack of sufficient planning for advisors' fees, be they lawyers, financial advisors or technical consultants; the ever present risk of scope creep; and protracted negotiations - to name but a few.

But still, the Highways Agency's telecoms procurement (late by 3 years, over-budget by £12.5m in advisors' fees) seems an extreme example.  The Public Accounts Committee's report concludes that "Most of the additional time and cost was incurred in meeting the Agency’s requirements for high quality bid documents" - an admirable aim in itself, but the PAC also found that:

"The Agency never had a clear idea about the time and cost needed to complete the procurement. In every updated forecast, the Agency’s revised budget and timetable were optimistic, often by considerable margins."

"The Agency did not deploy effective controls over the work of its advisers".

So a salutary lesson for public sector procurement managers.  Inevitably, and rightly, a lot of time is often spent working out an organisation's requirements for the goods or services to be procured.  However, taking time to properly scope advisor requirements and to build good working relationships with them can be equally important - both in terms of budgeting for and managing likely costs and in making use of their expertise in sense-checking the proposed procurement structure and timetable.

A call for comments. Worth £50,000? By October 31st!!!

The UK IPO is consulting on increasing the maximum penalty a Magistrates’ Court can impose for the offences of copyright infringement to £50,000. An “exceptional” maximum just for copyright infringement. The justification is that copyright infringement can be very profitable and criminals should be hit where it hurts with a penalty commensurate with the harm done.

The consultation argues that all criminal copyright infringement is highly profitable – so that’s all right then. It seems to ignore the fact that lots of businesses probably infringe copyright without knowing it or while thinking that what they do is harmless.  It also ignores the fact that criminals who are not serial copyright infringers - whose assets can be swept away under the Proceeds of Crime provisions - probably don’t have the assets to pay a fine at the exceptional maximum - and that exceptions have a habit of turning into rules. It may damage enforcement – although maybe the worst cases will get excellent publicity which will educate the public about copyright infringement?

This is a good example of exceptions making bad law. There is no justification for an “exceptional” maximum. The evidence is that there are not (according to the consultation) even that many prosecutions for copyright infringement anyway and those are quite often fraught with difficulties such as the satellite decoder cases. The issue here is not the penalty; it is the motivation to prosecute in the first place. The repeat offender – the ones making money – can already be deprived of assets under the extraordinarily oppressive regime of the POCA.

Write now and oppose an exceptionally bad bit of law!

The Webfather

A recent case in Italy has suggested that all blogs are likely to be illegal in Italy. Bloggers could be subject to a fine or some time in jail for not registering as publications.

The Italian constitution guarantees the right to freedom of speech at Article 21. According to third party sources, following world war two, there was a concern among Italian legislators that publications which abused this right could have a significant impact on the Italian populace. It was therefore decided to have all publishers register centrally before being allowed to produce a publication or they would be guilty of the offence of 'clandestine publication' (article 16 of Law 47).

This law was expressly stated to apply to the internet in a 2001 statute, Law 62. Recently Sicilian historian Carlo Ruta was censured under this law for producing a 'clandestine publication' on his blog. Mr Ruta was writing a blog about connections between the mafia and politics, hadn't notifed the authorities that he was publishing, and was therefore guilty of this offence.

I'm no Italian lawyer, but this seems to open the very real prospect of Italian bloggers being required to register centrally as a publication (with all the red tape this involves) or risk a fine or imprisonment for blogging. If Naked Law ever visits Italy, it had better like prison food.....

Calling all brand owners

An anouncement has been made by the Community trade mark office (OHIM) of plans to dramatically reduce the official costs involved in filing a trade mark application.  This means that the amount it will cost to protect your name or logo by a European Community trade mark (or CTM) will be much more appealing to smaller businesses. (Although the fees will still be significantly higher than the official fees for filing a UK trade mark application at the UK IPO, which is currently £300 for 3 classes.)

The fees for filing a CTM application (on-line) at the moment, to cover 3 classes of goods or services, are 1600 Euros, and the aim is to lower this figure to 1000 Euros per application.  This is due to a whopping 300 million Euro surplus that OHIM is trying to shed, and in doing so is giving back to the people who use its service.

Shiny new chrome?

By way of follow-up to one of my previous posts on Google's terms and conditions, Google are in the news again, but this time in relation to the ts and cs which apply to its new Web-browser entitled Chrome. 

The original terms and conditions apparently gave Google rights to an all singing worldwide perpetual licence to effectively reproduce and do anything else with any Content displayed on or through its Services.  This would have arguably covered any documents created through use of Chrome which could have been extremely wide.  The current ts and cs state that users will retain all rights in their Content and Google do not acquire any rights at all.

The interesting thing about this news story is that the excuse was that this was just a 'drafting error' resulting from the fact that Google aim to use consistent wording across all of their terms and conditions to make things simple for users (see blog post from Matt Cutts which includes a quote from Google Senior Product counsel Rebecca Ward).  It seems likely that public pressure may have given rise to this about-turn.

Google ahoy!

Yesterday it was reported in The Times that Google is toying with the idea of creating floating data centres that are powered in part by wave power, as a radical way of cutting costs. A patent application has been filed in the USA for the idea (presumably with the intention of stopping others from following suit), though the company admits that it files patent applications for a variety of inventions, not all of which are subsequently pursued.

Powering and cooling data centres is a big problem, and on the face of it seems like a clever solution. However, there is some suggestion that wave power alone, based on our current technology, could not power a large data centre and the set-up and maintenance costs are not going to be low.

In terms of avoiding property taxes, rules and regulations as suggested by The Times, there has already been some speculation that this won't wash either, if a fellow blogger at The Guardian is to be believed.  Currently the barges are only intended to be anchored seven miles offshore, and according to the UN (or at least Wikipedia), they'd need to be at least 12 nautical miles from the mean lower water mark around the coast to be in international waters (and this extends to 200 miles around some countries). It looks like Google may need to do some more thinking before this idea sails ...

The Good Times

The estimable Alex Wade - author of the Swordplay blog and the Times's Surf Nation blog - has today written a nice piece in the Times about blogging by lawyers in the UK with some kind comments about Naked Law and other UK bloggers.  I had an interesting chat with Alex while he was researching the article.

Who owns your profile – two recent cases on social networking sites

Two recent cases have given guidance on who has the rights to a profile on social networking sites.

In Hays Specialist Recruitment (Holdings) Limited and Another v Ions and Another the court held that Hays had “reasonable grounds for considering that” Mr. Ions had used LinkedIn, a social networking site specifically aimed at linking business contacts, to copy and retain confidential information belonging to Hays.

Hays alleged that Mr. Ions had, whilst still an employee of Hays, copied and then retained confidential information concerning clients and contacts of Hays. They then say he used that information in his subsequent business thereby breaching the restrictive covenant in his contract of employment. Hays was granted an order for the pre-action disclosure of documents which evidenced the uploading of business contacts and evidenced dealing with those contacts after Mr. Ions had left employment.

Mr. Ions contended that Hays knew he had uploaded contact details onto LinkedIn and, indeed, was encouraged to use the site to gain potential business. He claimed that once these contacts were loaded and the LinkedIn invitation accepted the information was no longer confidential.

Whilst the Judge was not asked to rule on this particular issue he did say that “even if [Mr. Ions] uploaded [the contacts] with authority, it is difficult to imagine that the authority was not limited to using them in the performance of his duties as an employee of Hays”.

This case would lead to the conclusion that your LinkedIn profile if used in the course of your employment might not belong to you but to your employer. If this is the case then as Talent Technology Blog point out what do you do when you move employer? Do you have to delete all recommendations from ex-clients? Do you have to remove all work contacts?  What happens if those contacts are also personal contacts? Watch this space and maybe we will have an answer.

On a slightly related note it would appear that the situation on Facebook may be different. In the recent case of Firsht v Readman, Mr. Firsht successfully sued for defamation and libel. Mr. Firsht discovered that a false profile of him had been generated on Facebook and that it contained private information about him purporting to include details of his sexual orientation and preferences and his political and religious beliefs.

The court found that the IP address used to set up the profile belonged to the home computer of a Mr. Grant Raphael, who was an ex-friend of Mr. Firsht. The court then went on to find that the material uploaded was defamatory and libelous.

Even though the profile was removed by Facebook within 16 days of it first appearing, Mr. Firsht was awarded £22,000 in damages including aggravated damages.

Mr. Firsht was able to obtain a successful prosecution due to the fact that Mr. Readman had used his own computer; if Mr. Readman had used a computer in an internet café the situation may have been very difficult.

Word Scrap Continues

Following on from Sarah's post earlier this year, the Scrabulous application has now been removed from Facebook but only for US and Canadian users of the site.  The removal of the application comes after Hasbro, the owner of the rights to "Scrabble" in the US and Canada, commenced legal action for copyright and trade mark infringement.  However, Scrabulous is currently still available to UK users of Facebook although perhaps not for much longer as Mattel, the owner of rights to "Scrabble" in the UK, has launched legal action against the developers of Scrabulous.

In response, those behind Scrabulous have released a new version of the game called "Wordscrapper" although it remains to be seen whether this will put an end to the disputes surrounding the game.  Scrabulous has been hugely popular with Facebook users and fans have embraced "Wordscrapper" whilst shunning online versions of the Scrabble game by Mattel and Hasbro and even calling for boycotts of Hasbro products.  This is sure to annoy Mattel and Hasbro and it will be interesting to see what happens next.