Naked Law

US legislators consider action on P2P

The Register reports that the US Congress is considering legislation to regulate/restrict the P2P networks.  A Senate Judiciary Committee hearing began on Wednesday 28 September under the banner "Protecting Copyright and Innovation in a Post-Grokster World".  The initial testimonies are available here and they make interesting reading.  It doesn't look like there will be any legislative changes just yet, but the Committee will form a prominent forum for debating how IP law should adapt to changes in technology.

The Aussie Kazaa and the US Grokster rulings encourage us to speculate about what this will mean in the UK.  Obviously, UK users will be affected if their favourite P2P service goes offline, but the British music industry has concentrated on targeting users and not the service providers (which are mostly based in the US).  We are left to wonder how far the "inducement to infringe" and authorisation of infringing copying arguments would stand up in the English courts, and what our 17-year-old Amstrad judgment would mean for today's technologies.  Amstrad was found not to be liable for authorising or inducing the copyright infringements of users of its twin-deck tape recorders.  My guess is that the Kazaa judgment would prove quite persuasive.

As Thomas Greene points out, the P2P networks have already begun to respond to the Grokster ruling: Mashbox is trying to buy Grokster with the intention of turning it into a "legal" service; WinMX and eDonkey are suffering; Limewire is working on introducing copyright-protection measures.  Faultline observes on the Register: "in the space of one week, many of the P2P filesharing networks are on the verge of exiting the business either to offer a legal version with paid downloads, or selling up or simply closing up shop".

Writers sue Google over Google Print

Those following the saga of Google Print may be interested in the latest plot twist: the US Authors Guild and several writers have sued Google for "massive copyright infringement".  Their allegation can be found here.  In short, they allege that Google "reproduced a digital copy of [works not in the public domain] ... without the copyright holders' permission and in violation of the authors' rights under the copyright laws", and that its "announced plan to display the Works on its commercial website ... infringes" the authors' copyright.  They are seeking damages, an injunction barring Google from "continued infringement" and further "permanent injunctive and declaratory relief barring Google from continued infringement".  As TechnoLlama says: "this is a case to watch".

The Google Print project (still a beta) has involved "digitising" (i.e. taking scanned copies of) book collections from several libraries and using publisher submissions to form a searchable database.  Google claims that this is legitimate:

"The use Google makes is fully consistent with both the history of fair use under copyright law, and also all the principles underlying copyright law itself. Copyright law has always been about ensuring that authors will continue to write books and publishers continue to sell them.  By making books easier to find, buy, and borrow from libraries, Google Print helps increase the incentives for authors to write and publishers to sell books.  To achieve that goal, we need to make copies of books, but these copies are permitted under copyright law.

This project is very similar to web search. In order to electronically index a webpage, you need to make a copy of it. In order to electronically index a book, we have to make a digital copy of the book. As with web search, the copies we make are used to direct people to the books. Our experience with web search is that many people ask to have their web pages included in our search results and very few ask to be excluded."

However, Google has already had to backtrack, putting the scanning of books on hold until November.

Google's defence - that its copying is "fair use" - would be rather more problematic in the UK, where we have much narrower fair dealing provisions than in the US.  In the UK, Google might fall foul of the restriction on copying or communicating works to the public electronically; the fair use defences here apply only to non-commercial research and private study; criticism or review; or reporting current events.  We have no statutory criteria for determining a general exception for "fair dealing" (unlike the US).

The litigation has prompted quite a row on Larry Lessig's blog.  Lessig argues:

"Google wants to do nothing more to 20,000,000 books than it does to the Internet: it wants to index them, and it offers anyone in the index the right to opt out. If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet? The “authors’” claims, if true, mean Google itself is illegal. Common sense, or better, commons sense, revolts at the idea. And so too should you."

I'm inclined to agree with Andrew Orlowski:

"So as we've seen with digital music, this is a compensation issue, rather a copyright issue. The most convincing way Google can demonstrate good faith is to share the revenue. As even the most cloistered librarian has noticed, Google Inc. has quite a pile of that."

This would tally with Lessig's argument in Free Culture in relation to the future of music distribution over the internet:

"Our focus ... should not be on finding ways to break the Internet. Our focus until we're there should be on how to make sure the artists are paid, while protecting the space for innovation and creativity that the Internet is."

I suspect that if the Authors Guild finds its members' revenues shooting up through Google Print's publicity, the law suit will become a sideshow.  However, in the meantime, though I am no US lawyer, I will be intrigued to see how far the courts are willing to bend the fair use provisions for public policy reasons - my guess is that they would rather see this dealt with by the legislators.

Another depressing reminder - nothing was clear here

Following Peter's earlier post about the Clearspring v Businesslinx judgment, I thought I would contribute my own thoughts on the case.  Clearspring commissioned some software implementing a database which reflected their core operating procedures. Clearspring wanted to licence this and claimed exclusive rights to the development. The Court followed Liverpool CC v Irwin (1977) AC 239, law originating in the muddy reaches of the Thames, and in a re-run of a number of previous similar disputes only implied a licence from the developer for Clearspring to use the development in their own business, and a prohibition on the developer using the information provided by Clearspring in the developer's work for other clients. The lesson of course is first think, then ink - put the ideas in writing and sign on the dotted line.

Should the law be changed so that someone commissioning software owns rights in it? The Government proposed this in the last major revision of copyright law, but backed away under pressure from many direction -- for the same (good) reasons that Clearspring lost their claim: ideas, algorithms and code are the tools of the developer's trade, and they need to be able to re-use them in subsequent developments. Maybe, however, it would help if there were more explicit rules in the absence of any other agreement, rather than relying on legal principles of implied terms in a contract, developed from barges which run aground in the Thames. Or should the government be encouraged not to meddle, and to leave it for common sense (and the lawyers) to prevail? Are there are more than enough idiosyncrasies in rights in software already?

Email interception RIP

Southwark Crown Court has been hearing the case against one of the UK's internet pioneers, Cliff Stanford, this week. Mr Stanford, the founder of Demon Internet, was accused of a breach of the Regulation of Investigatory Powers Act, or RIPA.

Together with co-defendant George Liddell, Stanford was alleged to have intercepted email communications at Redbus Interhouse plc in 2002 using software installed in Redbus' computer system which meant that any emails sent to John Porter, a former chairman of Redbus Interhouse, were copied to a separate email account.

Cliff Standford pleaded guilty to unlawful and unauthorised interception of electronic communications, an offence under section 1 of RIPA.

There have been relatively few published court cases on RIPA, which was an extremely controversial piece of legislation when first enacted. RIPA is written in language intended to catch a variety of types of modern communications, and as a result can be difficult to apply to particular uses of technology. Does the installation of software to send a duplicate of emails comprise an 'interception' of a communication for the purposes of RIPA? It may be relevant to Mr Stanford's case that interception of communications over a private telecommunication system does not give rise to a criminal offence where carried out by "a person with a right to control the operation or the use of the system".

The BBC reports that Mr Stanford is planning to appeal following an adverse interpretation of RIPA by the judge. If he does, we may get more clarity on what is permissible in this complex area of law.

Sun nearly up on .eu domains

The sunrise period for registration of the new .eu TLD is due to start in the next few months.  It will be in two phases, the first open only to public companies and registered trade mark holders (in relation to domain names comprising their company name or trade marks respectively) and the second, two months later, to holders of other rights in the relevant domain name which are recognised in a Member State.  The public free-for-all follows after another two months, although it is restricted, broadly, to organisations or individuals that are based in the EU. 

The intention of the sunrise period is to give rights owners the opportunity to obtain relevant domain names ahead of the crowd and to avoid problems like cyber- and typo- squatting.  But it will still be important for rights owners to act promptly since, even within the sunrise period, domain names will still be allocated on a first-come, first-served basis. 

Domain name service providers that have been accredited by EURid, the .eu registry, have been offering unofficial pre-registration services for some time, hoping to give prospective domain name owners a head start when the official launch is announced.  The Commission recommends that these services are not used due to “the risks of confusion or even fraud” – given that EURid is not currently accepting applications, the most such service providers can do is offer to submit an application as soon as the registration process is formally initiated (and of course they will not be able to do so during the sunrise period unless the applicant has the requisite rights in the domain name).  Do not think, therefore, that just because you “pre-register”, you will definitely obtain your domain name.

And for those organisations that miss out, EURid is currently finalising its Alternative Dispute Resolution procedure.  Public consultation on the draft rules closed on 7 September and the final version will be published prior to the start of the sunrise period.  We are currently involved in a number of claims under the Nominet Dispute Resolution Service (for .co.uk ccTLDs) on behalf of well known companies that have lost out to apparent cyber- and typo- squatters, and it will be interesting to see how the .eu procedure differs in practice – it is likely to be somewhat more complicated and costly that Nominet’s DRS, not least because the Commission’s Public Policy Rules require that ADR proceedings be carried out in whichever of the official EU languages is chosen by the holder of the disputed domain name.  The .eu ADR process will be provided by the Czech Arbitration Court in Prague.

The last Kazaa ...

More bad news for the P2P network developers: the companies behind Kazaa, including Sharman License Holdings, have been found liable for authorising copyright infringement in Australia.  The judgment was published today, and is available here (be warned: it's 131 pages long).

The case is particularly interesting for the UK because, unlike the recent US Grokster decision, the grounds on which the court found against Sharman are familiar from UK law.  The judge held that the developers were liable because they "authorised" users to make copies, or to communicate works to the public, without licence or consent from the copyright owners (i.e. the record companies).  Judge Wilcox summarised the three principal reasons for his finding:

• "the respondents have long known that the Kazaa system is widely used for the sharing of copyright files"
• "there are technical measures (keyword filtering and gold file flood filtering) that would enable the respondents to curtail ... the sharing of copyright files.  The respondents have not taken any action to implement those measures"
• "far from taking steps that are likely effectively to curtail copyright file-sharing, Sharman Networks and Altnet have included on the Kazaa website exhortations to users to increase their file-sharing and a webpage headed 'Join the Revolution' that criticises record companies for opposing peer-to-peer .... [and] to a young audience ... the effect of this webpage would be to encourage visitors to think it 'cool' to defy the record companies by ignoring copyright restraints".

So: some familiar themes from Grokster - it's the promotion of infringing uses that gets the developers into trouble - but also new ones (and a judge using the word "cool", albeit in quotation marks).  In the UK's Amstrad case - our equivalent of the US Sony Betamax case, in a way -  the court found that Amstrad were not liable for authorising infringement by making available twin-deck tape recorders that were capable of infringing uses.  On the other hand, in the Kazaa case, Judge Wilcox said that Sharman could be liable because it:

"was in a position ... to prevent or restrict users' access to identified copyright works; in that sense, Sharman could control users' copyright infringing activities.  Sharman did not do so; with the result that the relevant applicant's copyright in each of the [recordings] ... was infringed".

OGC guidance on procuring IT

A snippet of news for anyone involved in procuring IT systems for public sector bodies.  The Office of Government Commerce (OGC) recently published some brief guidance entitled 'Non-discrimination in technical specifications'.  The aim of the guidance is 'to help contracting authorities draw up contract documents that comply with EU rules on non-discrimination.'  The non-discrimination rules attempt to ensure that there is a level playing field between providers to the public sector. 

The guidance provides some general comments on the rules, including a warning not to use brand specific terms e.g. Oracle, SAP, unless this is justifiable.  There are also some specific rules on the purchasing of computer hardware.  When describing hardware, reference should be made to generic processor specifications e.g "x86 processor" rather than the brand e.g. Intel, AMD.  Reference to minimum microprocessor clock speeds (MHz) is outlawed as this can suggest a particular product and clock speed alone will not describe performance.