Naked Law

Schools on FAST copyright hitlist

FAST, the UK based Federation Against Software Theft, have reportedly been threatening to take schools, head teachers and local education authorities to court where they are using unauthorised software.

FAST's efforts to clamp down on software piracy have recently been bolstered over recent years with the introduction of the Copyright etc and Trade Marks (Offences and Enforcement) Act 2002 and the Intellectual Property Crime Directive. 

There has always been tension between those enforcing IP rights relating to software and others who believe the laws have become too draconian. But the enforcement rights are available and copyright owners will use them. 

There has been increasing encouragement to various public sector bodies, such as universities, local authorities and NHS bodies to consider open source software more closely.  Where open source software is used rather than traditionally licensed software, licence numbers and usage do not need to be monitored and kept in check.  There is much more flexibility with open source software and the software itself is free of charge.  Upgrades can be done without paying extra licence fees.  The licence is not dependent upon the numbers of users, the location or version used. 

Using open source software is not completely without risk - third parties may claim to have rights in the software (see the earlier article on model railway software).  Also, an organisation may still have unauthorised software floating around on its systems - but in a curious twist will the increasingly effective enforcement regime speed the pace of the switch to open source?

Rip it up (and start again?)

I spotted this story via geeklawyer this morning: the Australian government is apparently planning to change its copyright laws to allow users to rip music to their iPods (and other mp3 players) by introducing new fair use exemptions, including for private use.  Alongside these changes are apparently stronger enforcement provisions.

Under existing laws in Australia, as in the UK, users copying music from one format to another (including from CD to another CD, mp3 player or PC hard drive) can in theory be sued by copyright owners for infringing their rights - contrary to popular myth, there is no right to copy purely for "personal use".

The announcement is available here. The Australian Attorney General explained the changes:

Copyright is important and should be respected ... That is why the Government is updating our laws to keep pace with technology .... Everyday consumers shouldn’t be treated like copyright pirates. Copyright pirates should be not treated like everyday consumers.

I'm sure that the proposals will be welcomed by many and may lead to further pressure on the UK government to consider introducing similar expanded fair use provisions following the Gowers review (see our previous posts here and here).  In the Call for Evidence, the Gowers review team specifically asked:

"Are the current [UK] exceptions adequate or in need of updating to reflect technological change? For example copyright law in the UK does not currently have a private "fair use" exception. Such an exception might allow individuals to copy music CDs onto their PC and MP3 player for their personal use. Should UK law include a statutory exception for "fair use"?"

After last year's Kazaa decision on p2p copyright infringement, it looks as though Australia is a good place to look for both judicial and policy approaches to squaring existing copyright laws with new technologies.

The @ signs aren't good...

E-commerce lawyers got ridiculously excited a few weeks ago by a rare UK court case about email signatures, fully reported in today's Times. Most of us have email disclaimers and quite often auto-signatures at the bottom of emails, but what impact do they actually have legally?

Nilesh Mehta asked a colleague to send an email to solicitors acting for the claimant in a case relating to the supply of bedding products, asking for an adjoinment and offering a personal guarantee of £25,000.

There was no signature within the text of the email, but when received it did contain Mr Mehta's email address at AOL. When Mr Mehta refused to pay under the guarantee on the basis that there was no signed agreement (such a guarantee must be in writing and signed by the guarantor in order to be binding), the claimants argued that as there was an email containing an email address, that was sufficient.

When Mr Mehta asked his colleague to send the email, he knew his email address would be added to the email, and therefore knew the address would appear on the copy received by the claimant's solicitors.

The judge accepted that the email was sufficient to constitute a document in writing and considered a previous case which said that if something was inserted into a document with a view to giving authenticity to it, that could be a signature. However, as Mr Mehta's email address was inserted automatically by the internet service provider, the judge ruled that it was not sufficient to comprise a signature.

It is possible, although not completely clear, that the same would apply to all automatically inserted email signatures, regardless of whether the sender knew such a signature would be inserted. A key issue will be whether the sender intends an email to form a binding contract.

Whilst the case does not offer the answers some were hoping for, what is clear is that email users should take great care before clicking on send.