Naked Law

Out of copyright but not out of print

Google watchers may have spotted among one of the many recent announcements by the internet search firm that Google Book Search intends to allow users to print off the full text of classic novels.

This is not a first for Google. Other sites, such as the Online Books Page have been providing access for some time to the text of a number of out of copyright publications which can be downloaded for free.

The difference is that Google will offer the books in "print ready" format. As a result, Google will need to ensure that not only is the text of the novel out of copyright (in the UK this will generally be 70 years from the end of the calendar year in which the author dies), but also the copyright in the typographical arrangement of the publication, which is separately protected, is no longer subject to copyright restrictions (which in the UK last 25 years following the end of the calendar year of publication of the relevant published edition).

Where a classic novel has been recently republished, copyright in the layout will exist notwithstanding the fact that the underlying 'out of copyright' text which is displayed on the pages may be freely copied.

Action against police involved in Operation Ore?

Operation Ore was a recent international police investigation into websites featuring child pornography which was instigated following the arrest of a computer consultant in Texas, which led to the discovery of thousands of credit card numbers used to access online pornography.

Recent reports suggest that an action may now be brought against the police in the UK for the way they handled Operation Ore, as the police allegedly requested thousands of search warrants based solely on the details provided from US authorities.  Some of those affected by the investigation have suggested that they were the victims of credit card fraud.

A recent European Court of Human Rights decision concerning Gerard Keegan (where a search warrant was executed on the wrong house in the search for an armed robber) indicates that reasonable and proportionate steps should be carried out by the police to verify information received before they proceed to obtain a search warrant.  However, police involved in Operation Ore in the UK have complained that they did not have the resources to carry out a detailed investigation on the thousands of names passed to them by US authorities. 

If an action is brought against the UK police in relation to Operation Ore, it will be interesting to see the outcome and its implications for both police practice in relation to search warrants, but also in relation to data protection and the use and disclosure of information in the course of international police investigations.

Keeping the law at (e-)bay

Providers of services on the internet like message boards, auction sites (and blogs) generally like to feel they are pretty safe from getting into serious trouble with the law.  So long as they act sensibly, take down defamatory or otherwise illegal or dubious content when notified and so on, they tend to think they will be okay.

In France, moves are afoot to change this. According to a report in The Register, the Union of Manufacturers (Unifab) is about to complain to French prosecutors that eBay is not proactive enough in tackling the problem of counterfeit goods sold through its website. 

For its part, eBay states that it "is committed to protecting the intellectual property rights of third parties" and has a notification process through which rights holders can report infringing listings.  And its sellers' policies confirm that "[c]ounterfeits, unauthorized replicas, unauthorized items (such as counterfeit watches, handbags, or other accessories) or unauthorized copies (such as copies of software programs, video games, music albums, movies, television programs, or photographs) are not permitted on eBay."

For Unifab this does not go far enough.  According to its Chairman: "We think eBay is perfectly capable of policing its site, but they offer to take action only after the fact. They refuse to act pre-emptively".

Given the enormous number of listings, eBay must surely hope that it has got the balance right so far and is not found to have a wider duty to take action against counterfeiting. 

Has SWIFT been too quick to release data?

The Guardian reports today that the Information Commissioner is investigating a possible breach of the data protection directive relating to transfers of personal data by the Society for Worldwide Interbank Financial Telecommunication (or SWIFT) to the CIA, including information relating to millions of British bank transactions.  The Guardian quotes a spokesman for the Information Commissioner's office as saying that any disclosures to the CIA were "likely to be a breach of EU data protection legislation".

This story follows parliamentary questions about the compliance of any such disclosures with the Human Rights Act.  SWIFT has stated that:

"In the aftermath of the September 11 attacks, SWIFT responded to compulsory subpoenas for limited sets of data from the Office of Foreign Assets Control of the United States Department of the Treasury"

Edward Balls, economic secretary from the Treasury, stated in a written response to the question brought by an MP that: "The UK Government are aware of the arrangement between the US Government and SWIFT."

SWIFT's statements on compliance do not throw much light on the justification under the data protection legislation for these transfers.  This latest story follows the ECJ judgment earlier this year that annulled an agreement between the European Commission and US Govenment on transfers of airline data to the US and reflects the difficulty of balancing privacy obligations with law enforcement and national security concerns.

Celebrity squatting

Tom Cruise recently brought an action against a known cybersquatter who had registered the actor’s name as a domain name and was using it to attract internet surfers, who were then re-routed to the cybersquatter’s main site www.celebrity1000.com.

The dispute was heard under the ‘Uniform Dispute Resolution Policy’ (UDRP), which applies to all .com domain names. In the UK, Nominet has its own policy for .co.uk domains, which is similar to the UDRP.

Tom Cruise’s lawyers argued that he had common law trade mark rights. Although Tom Cruise does not own a registered trade mark in his name, they argued that nonetheless he has the right to stop other people from using and profiting from it. They also submitted that the cybersquatter was making money from third party adverts on the website and that internet users would be confused into thinking that the site was linked to Tom Cruise. These arguments were successful and the domain name was ordered to be transferred to Tom Cruise (see the decision here).

Some commentators have questioned this result, arguing that the decision of the panel was based on an incorrect finding of fact that the cybersquatter’s celebrity website was primarily focussed on advertising. The Nominet and UDRP procedures have no system of precedent – each panel must act in accordance with the relevant policy, and make its decision based solely on the facts before it and not on previous rulings.

However, despite this lack of certainty, the Nominet and UDRP procedures remain much more cost effective than court action.

GPLv3 gets second wind

The second draft of version 3 of the GPL free software licence was published on 27th July 2006.

There have been some very helpful changes from a legal perspective, but probably as important is the way the wording has become more user friendly and it is more readable.  DVD players and DVDs are used as an example to explain the concept of 'keys' and Corresponding Source.  There has been some pruning to improve readability and the term "Digital Restrictions Management" has been replaced with 'No Denying Users' Rights Through Technical Measures".  A guide to the changes is available here.

Many people, even some lawyers, believe that legal documents should be complicated, verbose and intricate. However, if the document cannot be understood, then those affected by it will not comply with it, even if they want to.  Legal documents of this nature will never be perfect and before long there will inevitably be a version 4 of the GPL.  However, any lawyer involved in drafting their own documents can only be jealous of the resources and experience providing input into the GPL drafting.  Take a look at the comments page where anyone can provide their own thoughts.

The DoS and Don'ts of computer misuse

Progress seems to be being made on updating the Computer Misuse Act 1990, which has existed without amendment since Apple Macs looked like this. The CMA had avoided legislative "botox" thus far, thanks mainly to the wide-reaching manner in which it was drafted. But an All Party Internet Group inquiry in 2004 called for an increase to sentences for hackers from six months to two years (thereby also making it an extraditable offence), and to make it clear that Denial of Service (DoS) attacks are unlawful.

We have mentioned previously on Naked Law the shortcomings of the CMA in tackling such DoS-type attacks, particularly as shown in the initial acquittal of David Lennon, who was said to have used the mail-bomber program Avalanche to flood the mail server of his ex-employer Domestic & General Insurance with more than 5 million emails. At trial the District Judge accepted the defence argument that each email sent was ‘authorised’ to modify the email server as that is how mail servers work, and that there was no cut-off point at which such volumes of email suddenly became unauthorised, and therefore illegal.  On appeal, this decision was overturned and the case referred back to the magistrates for sentencing.

A Computer Misuse Act (Amendment) Bill was proposed in 2005, but has since been withdrawn, with the amendments now incorporated in a Police and Justice Bill. These are currently being debated in the Lords, with much of the concern focused on proposals to make it an offence to “supply any article for use in offence.... believing that it is likely to be so used”. Fears have been raised that IT professionals who make and distribute hacking tools for legitimate purposes could risk prosecution, as they could be deemed “likely” to be used or modified for criminal purposes. As commented in the Lords, it would be like making the use of a crowbar illegal, as that could be “likely” to be used for burglaries. However the Home Office appear keen to play down such worries, and insist that only the bad guys will be caught by the legislation.

In the meantime many are saying that the real problem is not the CMA at all, but what Simon James, former head of the Computer Crime Unit at Scotland Yard, reportedly called a “woefully” under-resourced police force. Few could argue with this - as the Earl of Northesk points out, prosecutions under the CMA are currently rarer than for murder.

Google settles click fraud case

A $90 million settlement of a class-action click fraud case has been approved by a US state judge.  Legal action was first brought by Lane’s Gifts and Collectables in February 2005 but later changed to a class suit with 70 companies joining the case.

Under the settlement terms Google will pay claimants approximately $4 for every $1,000 of advertising they have booked with Google over the past four and a half years. Circuit Judge Joe Griffen of Miller County described the settlement as “fair, reasonable and adequate.”

Google was accused of not doing enough to prevent click fraud which resulted in advertisers being falsely charged.  Advertisers are charged a fee each time an individual clicks on their ads on Google’s pages.  Click fraud commonly occurs when competitors set up systems to click on a company’s ads, thus draining its advertising budget.

Independent expert Alexander Tuzhilin examined Google’s click fraud detection measures as part of the settlement and found that they were “reasonable.”  However, Google has announced improvements to its security which will, for example, enable advertisers to see how many invalid clicks to its site Google believes there to have been.