Naked Law

Spam Jam

Almost all of us have suffered the annoyance of spam e-mail correspondence at some point. For most it is a mild annoyance, for some a significant irritant. It is widely accepted that little can be done about it, such is the nature of the internet; simply press delete and move on. Thankfully though, some people do take a stand against the spammers.

Mr Gordon Dick is such a man. In January 2007 he is reported as having obtained a judgement in the Edinburgh Sheriff's Court against Transcom Internet Services Limited, based in Henley-on-Thames, for generating unsolicited e-mail (and for data protection legislation breaches). In summary, Mr Dick received spam e-mails and was curious as to how they could legally be sent using his personal information. He contacted Transcom asking how they had obtained and were entitled to use his details, they then appear to have not given satisfactory responses to his questions. From there he commenced legal action and eventually secured a judgement.  For a somewhat partisan account of these proceedings, please see Mr Dick's own website.

Mr Dick's experience is unusual. It is generally hard to identify the sender of a spam email, and spammers use various means to re-direct and process any responses. In this instance Mr Dick had an identifiable corporate entity as his target.

Legislation originating in the EU has put a legal framework in place to deal with spam issues (most notably S.22 of the Privacy and Electronic Communications (EC Directice) Regulations 2003 (SI2003 No. 2426). The only problem is that it is difficult to enforce, particularly against non-corporate spam generators, or those based overseas. Well done to Mr Dick nonetheless - a moral victory in cyberspace if ever there was one.

Smart IP

I recently read an interview with Marshall Phelps, now corporate vice-president and deputy general counsel at Microsoft but previously at IBM for 28 years.  Whilst at IBM, Phelps "is credited as having revolutionised the way in which companies manage their IP portfolios and, in particular, profit from their IP through licensing."  In essence, the story goes that IBM and the industry in general viewed IP as a side issue, a burden due to the enforcement/maintenance requirements and lacked vision over its real value and exploitability.  Phelps turned this around with a focus on making money specifically from IP - by licensing it out to potential competitors and customer alike. 

This discussion really rings true for what I see every day.  While many clients, particularly the larger companies, understand the importance of IP and have sophisticated licensing arrangements and protections in place, frequently others (often the smaller clients with the technical skills but perhaps not the business experience) seem to view IP and its protection and exploitation as a bit of a chore, at best something they know they need to get right but don't really understand why, at worst something that is an apparently trivial after-thought.  The very name - "intellectual property" - is enough to put many people off. 

But technology businesses cannot afford to be ignorant or complacent about their IP.  In most cases, your IP is your business whether you realise it or not.  Software developers create source code protected by copyright.  Hardware manufacturers create component or system designs which may be protected by copyright, design rights and/or patents.  Website designers create graphics, text and images protected by copyright. 

There are two reasons why active management of these assets is a must:  firstly, you can protect your rights from illegitimate exploitation by others and, secondly, you can often increase revenue by licensing those rights to third parties.  For software developers, for example, this does not mean simply your core business of licensing end users; you might also seek to cement your market advantage by allowing (for a price) other developers, who might otherwise produce competing products, to use and license the software or components of it.

There are a million things to do when starting up and running a business.  But don't let IP fall off the radar - it will be the key to your success.

No Dell-ivery on promises?

The Attorney General of New York State, Andrew Cuomo, is suing Dell for (according to News.com) "fraud, false advertising, and failing to honour warranties and service contract".  The claim relates to Dell's alleged behaviour towards consumers in the State, although available details are somewhat sketchy at the moment.  Mr Cuomo has requested an injunction to prevent such behaviour and damages for the customers that have apparently lost out.  Dell, of course, deny wrongdoing.

I must admit to being slightly surprised to find Dell in this position: my view has always been that they have a good reputation in the UK at least, and everyone I know that have bought a Dell computer has been more than impressed with its customer service (although this may be a reflection on my limited range of acquaintances - the briefest Google search shows others feel very differently, see for example, here). 

As an IT lawyer, I frequently deal with the big hardware manufacturers on behalf of their commercial customers.  In this context, particularly where very large sums of money are involved, we tend to negotiate the contract terms in detail, in particular the warranties and the ongoing support offered by the supplier so that each contract will be different to the next.  In this way, large customers are often able to avoid the imposition of a supplier's standard terms in a way that individual consumers simply cannot.  While litigation is certainly not unusual in big IT projects, it means that it is very unlikely that unrelated commercial customers would bring some kind of joint action against a supplier (not least because in the UK "class" actions i.e. cases brought by one party on behalf of a certain category of unknown claimant - are not permitted). 

However, regardless of the outcome of the New York case, it is a reminder to all customers, commercial and consumer alike, to check your contracts and ensure you are getting what you pay for.

Philips' Rules OK

The Information Commissioner decided last week that Philips' binding corporate rules (BCR) were sufficiently robust to justify an authorisation for Philips to share the personal data of employees and clients within the Philips group internationally.  The Data Protection Act 1998 restricts the transfer of personal data outside the EEA unless certain minimum requirements are met (eg using authorised BCR, using standard model contracts, obtaining the consent of data subjects, or otherwise ensuring "adequate" protection for the rights of the data subjects - see here for further information).

We previously reported on the decision to authorise GE to share data.  Given the publicity BCR have received, it is perhaps surprising that there remain only two BCR authorisations from the Information Commissioner to date.  Note also that the authorisation only applies to the extent that Philips' international data transfers are within the jurisdiction of the Information Commissioner - Philips will now have use the UK authorisation to apply for approval from the other relevant EU jurisdictions from which it transfers data internationally using the so-called "co-operation procedure".

Can you Digg it?

I enjoyed reading at the weekend about Andrew Keen railing against the "digital narcissism" embodied in Web 2.0 and his nostalgia for the time when there was a "clear distinction between author and audience".  As a comment on modern social trends, he may have a point: we all seem to want to be (blog) writers/(YouTube) movie stars/(reality TV) celebrities without necessarily putting in the graft/possessing the talent to deserve our celebrity - and the possibilities of Web 2.0 must have contributed to this phenomenon.  But as with other ephemeral forms of communication (like conversations), alongside the bulk of throwaway content, there is a body of content that is useful/interesting/relevant to each of us.  It's just a matter of finding it.

Not an original insight, but my guess is that the apparent chaos of Web 2.0 will become even more ordered and comprehensible (useful?) as time goes by, for example through the establishment of new hierarchies of authority or new tools to assist users (as we've seen with Technorati, Google Blog Search etc).  Empowering user-authors will lead to user-readers demanding (or creating) ways to use and manipulate the new content.

Anyway.  This talk of Web 2.0 made me more interested than usual to spot the story about the (user-influenced) decision by Digg to run the risk of legal action by refusing to remove details of how to crack the encryption on HD-DVDs:

"we won’t delete stories or comments containing the code and will deal with whatever the consequences might be" (Kevin Rose, founder of Digg).

The Advanced Access Content System Licensing Administrator ("AACSLA") has threatened action under the US Digital Millennium Copyright Act (the equivalent of our Copyright Directive, implementing the WIPO treaty that, among other things, restricts circumvention of copy protection).

Being backed by a large volume of voluble bloggers may help publicise the issue but it doesn't change the law (at least not in the short term) - just look at the blog-space devoted to criticising the recording industry in relation to P2P before the BPI waded in with action against users.  Time will tell whether the AACSLA decides that the adverse publicity in the blogosphere of pursuing Digg outweighs the benefits removing the DVD cracks - but if the RIAA's approach to digital infringement is anything to go by, I know where my money would be.

The letter of the law

In a case heard by a leading Intellectual Property judge in the High Court, it was held that copying a simple business letter relating to court proceedings could amount to an infringement of copyright.

The case itself involved Danish company Dansk Eternit Holding and Cembrit Blunn Ltd as claimants in a dispute with roofing contractor Apex Roofing Services LLP.  An internal letter was produced by Dansk's executive Vice President relating to possible settlement of a claim which had at that time been threatened against Cembrit.  The letter was passed to the roofing contractor Apex Roofing.  Apex circulated this letter.  The Claimants claimed that Apex's circulation of the letter breached the copyright of Dansk and also amounted to a misuse of confidential information.

Justice Kitchin held that the letter was a work that qualified for copyright protection.  Copyright may subsist in original literary work where a substantial degree of independent skill and labour has been involved in the creation of that work.  There is no need for the content to be particularly creative or to contain inventive thoughts. 

Any emails or letters which required a degree of skill and labour to create, and are not simply repetitions of previous works, may be protected by copyright. Companies should be aware of this before hitting 'forward' on receipt of business emails, or before copying and sending any letters or documents which could be said to contain an intellectual creation.