Naked Law

K’zaa-choo! In from the cold.

Former industry outcast Kazaa has finally submitted to the might of the music giants and gone legal. The p2p network has also paid $100m to the recording industry in an out of court settlement. This follows on from, perhaps, the killer blow for Kazaa last year when it was found liable of authorising copyright infringement by the Australian courts (see our earlier post).

According to the BBC report, $100m represents half the value of the legal download market in Europe, which shows just how powerful a medium Kazaa had become for illegal file sharing. Industry leaders are celebrating another scalp – and certainly the avenues for obtaining free music downloads continue to be blocked up.

Brands (and trade mark lawyers) to get a ‘Second Life’?

The clothing firm American Apparel must be tempted to view their opening of a ‘cyberstore’ in the smash-hit online world of Second Life last month as ‘mission already accomplished’. When interviewed for a piece in The Guardian, their director of web services was keen to play down the revenue-generating expectations of the virtual store, framing it as an experiment in marketing and brand-building. But given the whirlwind of free publicity generated by this story for both American Apparel and Second Life, it seems certain that other ‘real world’ companies will want to follow suit. And as more companies look to promote themselves in such virtual environments, so will their motivation grow to fight any infringements of their brands - such as the virtual computers sold on Second Life that look rather similar to Apple laptops.

In the US the Digital Millennium Copyright Act 1998 provides ‘safe harbour’ for intermediaries such as ISPs, and the creators of Second Life, for copyright infringement by its users, provided they take action to block these infringements when notified by the copyright holder (we have similar exemptions in the UK under the E-Commerce Directive for ISPs caching, hosting or acting as "mere conduits").

However the DMCA does not provide protection for trade mark infringements, and following a 2001 ruling in the US (see here for more details) those such as the Second Life creators Linden Labs could risk potential liability for contributory infringement if they choose to turn a blind eye. Not that Linden Labs are likely to do so – they probably have as much to gain by policing their virtual world, and promoting customer and investor confidence, as those who actually own the brands. But the potential for future litigation is certainly there for intermediaries such as ISPs who take a more laissez-faire approach.

Action taken against domain name registrars

Domain name registrars who operate their businesses in a legitimate manner will be pleased to see action being taken against registrars who abuse their position. As reported by the BBC, EURid, the European Registry for Domain Names, which is responsible for administering the top level .eu domain name, is taking action against registrars believed to be “warehousing” up to 74,000 new .eu domain names in the domain. “Warehousing”, or registering for resale, is regarded as a breach of the EURid rules. There have been complaints for some time about registrars who flout the rules which apply to them, particularly by permitting abusive registrations or making it more difficult to challenge such registrations. This action will therefore be seen as a welcome move.

Naked for a year

Though it probably went unnoticed by most people, "Naked Law" recently had its first birthday, which was a cause for a minor celebration for the Naked Lawyers - not least because when we started writing, the field of UK lawyers blogging was almost uncharted territory (at least when compared with the many US "blawgers"), so we didn't entirely know what to expect.

On the whole, we've been delighted with the reception Naked Law has received.  We've seen some heated discussions played out on the blog, for instance (predictably) around software patents and the Sony rootkit debacle; we've had the opportunity to join in debate with other tech-law bloggers, such as Justin Patten at Human Law, geeklawyer, and Lilian Edwards at Blogscript/Pangloss; we've had interest from the media, including the Law Society's Gazette, The Times and even the Cambridge Evening News; and we've all spent a lot of time keeping up to speed with the latest tech-stories hitting the news.

To celebrate our first birthday, the team is looking for suggestions about what the future should hold for Naked Law.  On a simple level, we're looking for a new logo - we like the simplicity of the text on the page and don't want to clutter it with pictures, but we would like something a little bolder than the heading we currently use.  And we would be grateful for feedback from readers (by email or as a comment) about our content - are we talking about the right subjects?  Are we giving enough detail (or too much)?

Over the last year, there has been a gradual increase in the number of UK law blogs and even new wikis (see Delia's list).  And we're seeing further legal challenges to bloggers, such as the secretary sacked for allegedly bringing her employers into disrepute.  It's still an exciting time to be blogging about the law in the UK.  Please let us know how you think we should be responding.

Yellow but not mellow

Trade mark lawyers with some time to spare might like to contribute to the attempt to draft a response to Yell, who have written a 'cease and desist' letter to Yellowikis, a wiki based business directory site. Whilst the letters in progress here demonstrate outrage that Yell should possibly want to shut down Yellowikis, they look to have an uphill struggle ahead, particularly in relation to Yellowikis tag line "Yellow Pages for the 21st Century". Yellow Pages is a registered trade mark of Yell and the original registration, dated 1979, covers: "Directories of businesses and services, all having yellow pages".

On the bright side, the background colour to the web pages at Yellowikis, is...white.

b4uvote

The Information Commissioner's Office has served an enforcement notice on b4usearch.com ordering it to stop using pre-2002 electoral roll information, in breach of the Data Protection Act 1998 (see story on Kablenet).

Anyone eligible to vote in the UK is required to provide their name and address to their local council.  Prior to 2002, local councils were able to sell all of this data.  However, electoral roll data has been treated differently following a complaint by retired accountant Brian Robertson against his local council, the City of Wakefield Metropolitan District Council (see the resultant legislation here). 

UK readers with an eye for small print may have noticed that you can now object to electoral roll data being used for marketing purposes and an edited register is produced including only those folk who are happy for their data to be used for marketing purposes - surprisingly many people still wish to be on the marketing list.

The ICO has received some 1600 complaints from people unhappy about the use of their personal electoral roll data by b4usearch.com.  The ICO has found that "damage or distress to individuals is likely to have been caused by information being processed in this way".  Damages can be awarded under the Data Protection Act and the Human Rights Act for privacy breaches.

The deadline for compliance with the enforcement notice has not been published by the ICO, but b4usearch.com may of course decide to appeal against the ruling.

The UK Data Protection legislation implements EU legislation that itself articulates broader international Human Rights law - essentially article 8 of the European Convention on Human Rights protecting privacy.  EU member states are given some degree of freedom to decide how the law is enforced and what the penalties will be for non-compliance.  The EU has already expressed concerns at lenient enforcement of the legislation in the UK compared to other member states.  It would be interesting to see how the b4usearch.com issue would have been dealt with in other countires where fines are apparently more common for invasion of privacy.

See a NakedLawyer at LugRadio Live 2006!

One of the NakedLawyers, Des, will be speaking at LugRadio Live 2006! in Wolverhampton on 22/23 July 2006.

LugRadio is "a fortnightly British radio show that takes a relaxed, humorous look at Linux and open source."  They do warn that their content may be offensive to some people so proceed with caution if you are easily offended.

Speakers include Mark Shuttleworth of Ubuntu, Simon Phipps - Sun, Michael Meeks - Novell (OpenOffice), Simon Willison - Yahoo! and Stephen Lamb - Microsoft.  Des of NakedLaw will be giving a lightning talk on Saturday 22nd July.  See the full list here. 

New law in France which could shake Apple to the core

French legislators have recently voted in favour of new copyright legislation that could force Apple to licence its i-Tunes song format to third parties so that downloaded music can be used on rival mp3 players.

The original bill in question was subject to numerous revisions, not least because of the controversy surrounding the impact of one of its key provisions relating to technical restrictions on use of electronic data (known as digital rights management). The aim of the legislation was to prevent companies like Apple being able to restrict their customers’ freedom to use the song files on other systems and devices.

However, the force of the legislation has been softened by an amendment which allows companies to continue using DRM to restrict movement of their products between devices, but only where they have obtained permission of the owner of the copyright in the music.

This is a big blow for Apple and other big players. Apple has, up until now, been used to having the upper hand and ensuring a tight reign over its products and sales of its music. Good news for the consumer, however, as other countries in Europe may well follow France's lead.

Lost in music? Don’t forget the rest...

You could be forgiven for thinking that it’s only file sharing that copyright owners are concerned about on the internet. With illegitimate download and p2p sites and their users consistently in the firing line from the music industry, other instances of copyright infringement on the web tend not to hit the headlines.

By now, we are used to court orders against ISPs requiring them to disclose the identity of their file sharing users. However, a recent judgement against Google shows that it’s not just file sharers that need to beware.

Unknown people had published an early draft of a publication which was not due for release in the UK until October this year. It was available for free download from a site accessible via an advert on Google. The copyright owners obtained a court order against Google to disclose the identity of the advertisers, who the judge agreed it was reasonable to consider were the same people as those infringing the copyright in the work. Google had previously made clear it would not oppose the application.

A warning to website owners then - copyright is not just relevant to music and video files. The unauthorised use of documents and other text or images can also be the subject of infringement action. And increasingly infringers are unable to rely on the perceived anonymity of the web to shield themselves from action by disgruntled copyright owners.

Alarms but no surprises over live data testing

Another story of the ignorance among businesses about their obligations under the Data Protection Act hit the headlines recently: firms are "falling into data protection pitfalls" (ZDNet), playing "data protection roulette" (Techworld) and "gambling with [the] Data Protection Act" (PC Advisor).  This follows research conducted for Compuware indicating that 44% of senior IT managers use "live" customer data to test applications and that 48% of them are only "vaguely" aware of their obligations under the Act.

In short, businesses using the personal data of their customers risk breaching the Act in a number of ways: they may fall short of their obligation to use appropriate technical and organisational measures to protect the data (seventh principle); and the use may be outside the scope of the original purposes for which the data were collected (first and second principles).  Data protection practitioners will not be surprised to hear that companies are sailing close to the wind with the uses to which they put customer data.

This story follows news of the recent security breaches in India and the Information Commissioner's decision to issue his first enforcement notice against the owners of a website for using electoral roll data from before 2002 following 1,600 complaints received by the ICO's office.