Naked Law

Game's (all) up for AllofMP3?

Whatever the legal (and ethical) rights and wrongs of AllofMP3.com, I've always found the name clunkily amusing.  I wonder whether the site owners have deliberately chosen a name that looks like a bad translation as a cunning ploy to convince users they're dealing with a sort of simple, rustic, back-to-basics business, more like buying from the bloke on the market than a big slick international record company.  Either way, it's worked rather well - AllofMP3 is reported to be making around $30 million a year, and the site is back in the news again. 

For those not in the know, AllofMP3 is a Russian-based website offering dirt-cheap music downloads, and it's been the lucky recipient of business from both innocent people who can't believe their luck when they see its prices (and its claims to legitimacy) and record "buyers" frightened off by the risk of action by record companies for downloading unlawful copies using P2P.  The latest news is that during Russia's negotiations for entry into the World Trade Organisation, the US has insisted that Russia agrees:

"on the objective of shutting down websites that permit illegal distribution of music and other copyright works .... [and] names the Russian-based website AllofMP3.com as an example of such a website."

In the UK, the BPI has warned that users of AllofMP3 risk infringing copyright because the sales are not licensed, though it indicated that it would target AllofMP3 itself in the first place rather than the users, winning the right to do so in July.  That said, the record industry began by targeting P2P providers and then started suing individuals within the last year or two, so watch this space.

Dino owners lose Barney over free speech

The owners of the rights to Barney the Dinosaur, Lyons Partnership, have lost an action brought against them in the US courts by the Electronic Freedom Foundation. Lyons repeatedly requested that Stuart Frankel take down images of Barney from his website, which describes the purple dino as “the Enemy” and as “seriously not good for kids”. Lyons claimed infringement of copyright in the images of Barney. However, EFF successfully claimed that Mr Frankel’s use was parody and therefore protected by the First Amendment rights to free speech and the right to fair use for parody under US copyright law. On Monday the court approved a settlement agreed between the parties under which Lyons agreed not to pursue Mr Frankel further.

In the UK there is no right to parody as such, but “fair dealing with a work for the purpose of criticism or review” will not infringe copyright in that work provided that sufficient acknowledgement of the copyright owner is made.

Software patent - a bogus claim

One particular IT related patent application is getting a lot of attention from IP lawyers on the US Patent and Trademark Office web site - take a look at claim number nine.

Fighting over airline passenger data

Following on from my recent post about the interim agreement reached between the US and the EU on passenger data, the Electronic Frontier Foundation (EFF) has filed a claim against the US Department of Homeland Security (DHS).

The deal reached between the US and the EU allows 34 pieces of information about EU passengers flying to the US to be passed automatically to the US authorities for security reasons.  Now the EFF wants to know how the collected data is handled, maintained, used, disclosed and secured and has asked the DHS to provide such information under the US Freedom of Information Act (FOIA).

The DHS has failed to respond to the EFF’s request and, as a consequence, the EFF has filed a claim under the FOIA in the District Court in Columbia seeking access to records.  “Those travelling between Europe and the United States deserve to know who gets to see that data, how the information is protected, and whether those practices comply with EU law”, says Marcia Hofmann of EFF. The concerns that the US authorities have in relation to those flying to US airports is understandable after the events of 9/11; however, some fear that terrorism is being used as an excuse for undermining rights to privacy and data protection.

Law tunes in to MP3 transmitters

Have you ever thought how great it would be to listen to your MP3 player through your car radio?  Some relatively straightforward technology has been available for some time to transmit the signal in your player to an FM radio, but using such a transmitter has until now been illegal in the UK under the Wireless Telegraphy Act 1949 (see OFCOM).

Anyone who has not already bought a transmitter from a foreign supplier or an online auction, can now purchase appropriately designed transmitters from 8 December 2006 in the comfort that they will not commit a crime (as reported by the BBC).

Be careful though, only low powered transmitters will be lawful - transmitters manufactured to meet the relevant standards should carry the CE mark.  It remains to be seen whether the legal limit on the power level will be acceptable to consumers (it will probably transmit to a distance of around 8 metres), or whether global online selling will mean that unlawful more powerful devices remain in use in the UK.

Will IBM bring Amazon to book?

After four years of attempting to resolve their patent disputes with Amazon, at the end of last month IBM filed 2 claims in Texas against the on-line retailer for patent infringement.

IBM’s patents date back to when e-commerce all started, and relate to concepts of storage and presentation of data in interactive applications, presentation of advertising in interactive applications, and systems of ordering items from an electronic catalogue. 

IBM is accusing Amazon of wilfully infringing key patents, given that Amazon was put on notice by IBM of the alleged infringement in 2002.  “We filed this case because IBM’s property is being knowingly and unfairly exploited”, said IBM’s senior vice president of technology and intellectual property Dr John E Kelly III. 

Amazon’s refusal to enter into discussions with IBM is in stark contrast to many other companies who have signed up to ‘field of use’ patent licences with IBM.

Government acts on DoS

Last Wednesday, after some delays along the way, the Government finally passed an Act introducing a new "denial of service" offence, punishable by up to ten years in prison.  The text of the draft bill, including the relevant wording, can be found here - see section 34 in relation to the offence for carrying out "unauthorised acts with intent to impair operation of computer".

As we have previously reported, the existing Computer Misuse Act had been widely criticised for being out of date and leaving loopholes for denial-of-service attackers to exploit, notably in the wake of the initial acquittal of David Lennon a year ago after he initiated the sending of millions of emails to an ex-employer. Though Lennon was subsequently sentenced to a two month curfew on appeal under the existing law, the Government has nonetheless pressed ahead with the change, which should address some areas of ambiguity.

The new Act also introduces an offence of "making, supplying or obtaining articles for use in computer misuse offences", which might catch for example anyone creating a virus and making it avaiable for distribution by third parties.

Googletubed

Google is facing a number of potential copyright infringement claims around the globe, following its recent acquisition of the video sharing site 'YouTube' for a reported $1.65 billion.

For those of you unfamiliar with YouTube, it is a website which allows website users to upload video content, which may then be viewed by other visitors to the site. Searches of the site reveal that a large amount of copyright content is currently available for download, including clips of TV shows and music videos.

Prior to the Google takeover, YouTube was described by various commentators as an organisation which did not generate profit, and a perceived lack of funds may have discouraged third parties from seeking a remedy against it for copyright infringement. In contrast, Google is clearly a significant financial target, which has resulted in action being initiated in the US following the takeover, to add to action which was underway in Japan.

Google will, no doubt, have been made aware by their legal advisors of the potential volume of copyright infringement it might find itself liable for by purchasing YouTube, and Google is reported to be in licensing talks with a number of major copyright owners. The speed with which the copyright infringement cases have come to the fore does, however, highlight the importance of undertaking appropriate intellectual property due diligence.