Naked Law

New (and improved?) GPL v 3

The Free Software Foundation (FSF) has announced the release of version 3 of the GNU General Public License.  The FSF had issued various drafts before now of this version 3 and sought consultation on the provisions before reaching a final version. 

Those familiar with the previous version 2 will know that the General Public Licence is the most widely used licence for open-source software.  This new version carries with it some key amendments since version 2, including a prohibition on the use of digital rights management software within GLP v 3 licensed programs to prevent modification of those programs (a process known as tivoisation by some).  This particular change is seen as controversial by many, see comments made by Technollama.

This new version also tries to support the aim of open source software systems to guarantee freedom to every user to use, run, modify etc the program in question.  No users of GPL v 3 licensed software will be liable for infringing any patents owned by distributors or creators of all GPLv3 licensed programs by modification of the program and each user would be granted a patent licence (where necessary) in respect of use of such programs.  This goes further than version 2 which did not grant this right expressly.

There is no need to worry about the new GPL v 3 where you are using GPLv2 licensed software, except where you are using a program which combines both GPLv2 licensed code with v3 licensed code. GNU advises making use of the new version, however, in cases where the new provisions may be useful.

What is the Tru cost of Phoning?

Those with access to a nifty new Wi-Fi-enabled mobile handset, such as the Nokia N95, might be interested in the legal wrangle between telecoms startup Truphone and mobile network operator T-Mobile. Truphone provides Skype-like functionality to a mobile handset - users can call for free (or significantly reduced cost) using voice over IP (VoIP) technology where wireless internet access is available.

T-Mobile is alleged to have been refusing to permit its customers to access numbers used by Truphone. The Truphone service as a whole has a direct impact on the revenue of mobile operators as calls made using a mobile handset via Wi-Fi will generally not result in the charges which would have applied had those calls been made across the network of the mobile operator. Truphone claim in the documents supporting their application for an injunction that T-Mobile took a high level decision not to route numbers of this sort, and that T-Mobile refusing to permit its customers to call Truphone's numbers is abuse of a dominant position in breach of UK competition law. T-Mobile strongly denies this, and states that there is merely a commercial dispute around the terms on which T-Mobile will connect the numbers in question.

Both the skeleton argument for Truphone and the response from T-Mobile are available for download.

A court decision in favour of Truphone may clarify the position and open up opportunities for similar services from other providers. Ultimately, if the use of VoIP for mobile calling increases, mobile operators may become more akin to an ISP than a telephone service provider. A decision on the injunction is expected this week.

Across the pond: the US domain

I spend quite a bit of time advising on domain name issues and helping businesses recover domains from cybersquatters.  This is always in the context of English law, and we don't advise on the US law aspects (except via our US associates).

However, readers might be interested in the following article on the "10 US Laws Every Domainer Needs to Know" (thanks to the publisher's Rich McIver for contacting us with this).  I can't vouch for its accuracy (being English born and bred) but it looks like a useful summary of the various US legislation.

Direct Line wheels out winner

Direct Line recently won in the High Court, in contesting an application by rival esure to have a trade mark registered for a computer mouse on wheels.

To explain the background, in September 2004 esure applied to register a representation of a computer mouse on wheels, see here. Direct Line, with their well known, registered, telephone on wheels trade mark, opposed this application successfully with the intellectual property office hearing officer on the basis that it would be detrimental to the distinctive character of Direct Line's mark, contrary to S. 5(3) of the Trade Marks Act 1994. esure then appealed to the High Court.

In its judgment, the Court dismissed part of Direct Line's claim that the marks were confusingly similar in accordance with S. 5(2) of the Trade Marks Act. However, esure still lost, since they would be taking unfair detrimental advantage of Direct Line's mark, contrary to S. 5(3). The hearing officer's view, that use by esure of their logo would be 'parasitic and unfair' was endorsed by the High Court judge, Lindsay LJ.

This judgment does seem a reasonable outcome on the facts, though my view is that the marks were also confusingly similar. The Limoncello case (as reported here by IPKAT) T-7/04 Shaker di L. Laudato & C. Sas v OHIM, Limiñana y Botella, SL offered guidance at paragraph 67:

'The fact that the average consumer retains only an imperfect mental image of the trade mark renders the dominant element of the mark in question of major importance'.

While this decision has been criticised, it makes good sense to me. If applied in the present case, I think that there is a strong argument that the 'dominant element' of the Direct Line trade mark is the use of wheels on an everyday object that doesn't usually have wheels on, in connection with their particular class of services.

Now (that's what I call law blogging) 2.0

Naked Law readers will notice a number of changes to our blog today.  For a start, we have a smart new logo (thanks to Barbara Brownie for the design).  We have also played around with our layout.  We rather like our new look (though the somewhat 70s-themed colour scheme remains under internal discussion).

If anyone has any suggestions or comments on the changes, please let us know by the usual means ...

All of over for AllofMP3.com (or is it ... ?)

Five great things about this story of the apparent closure of AllofMP3.com:

• a reminder of the possibility to make a fortune under a truly awful brand name (I refer you to my previous post on the subject);
• the whiff of espionage and reported involvement of the Kremlin;
• the reference in this post by Criticulture to the business run from the old AllofMP3.com being "dubiously-legal" ("your honour, I put it to you that my client's business was in fact legal - though admittedly only dubiously so ...");
• the apparent success of international pressure in bringing about the closure of a "dubiously-legal" web-business in a jurisdiction that has previously appeared to tolerate it - though note this from John Kennedy, head of international music industry association IFPI:

"Russia remains a huge source of internet piracy. We would now like to see decisive action taken against similar copyright-infringing sites to show that the Russian authorities are indeed seriously committed to enforcing intellectual property rights";

• the (for the record industries rather frustrating) fact that the story continues - AllofMP3 appears to have upped and re-sited itself at the more snappily-entitled MP3Sparks.com (which is still dubiously-legal, no doubt).

The EPO strikes back

Following Peter's post on the High Court decision in IGT v Comptroller [2007] EWHC 1341 (Pat), a November 2006 decision of the European Patent Office (“EPO”) Board of Appeal (T 0152/04) has just come to light which holds, in no uncertain terms, that the Court of Appeal decision in Aerotel Ltd. v Telco Holdings Ltd & Ors Rev 1 [2006] EWCA Civ 1371 is bad law.

The Board of Appeal held that the technical effect approach adopted by Aerotel was “irreconcilable” with the European Patent Convention (“EPC”). The Board of Appeal held that the correct approach was to treat the claimed invention as a whole when assessing patentability, as the combination could be technical even if features taken individually had to be considered non-technical.   A patentable invention could have a mix of technical and non-technical features appearing in a claim, in which the non-technical features may even form a dominating part.  However, non-technical features, to the extent that they do not interact with the technical subject matter of the claim, are ignored in assessing novelty and obviousness. 

Essentially, where the Board of Appeal differs from the Court of Appeal is that, in determining whether a claimed invention is in fact an invention, one applies a two stage test: (1) identify the invention claimed; and (2) check whether the claimed invention produces a technical effect.

One does not (as opposed to the Aerotel approach), also identify the contribution made and then determine whether the contribution falls solely within any of the matters excluded from subject. However, applying the Board of Appeal approach, novelty and obviousness can only be determined only with regard to the technical features of an invention.  Therefore if the contribution made by the invention lies only in its non-technical features,  it follows that the technical features would not be novel or would be obvious, and the invention would not be patentable.

It seems to me that the two different approaches will generally reach the same destination by a different route, the difference being that the Aerotel approach will cause the patent application to fall down at the “invention” hurdle whereas under the Board of Appeal approach, it will clear this hurdle only then to fall down at the next hurdle.

SCL Web 2.0 Conference

Following my return from holiday I thought I might mention that I recently managed to make it along to the Society for Computers and Law 7th annual conference titled 'Web 2.0 - Internet Law in the 21st Century'. Some great points were made on the implications web 2.0 has for legal practitioners.

Of particular popular interest is the approach employers will have to take in relation to the proliferation of social networking sites such as Facebook, as well as the extensive development of internal blogs and the intranet as a useful work medium.

Some interesting opinions were put forward, not least that putting employee policies in place dealing with the management of legal risk is a potentially contentious issue. Employers must protect themselves when it comes to emerging technologies, but this must be balanced against the potential PR risks, see here and here for two examples.

It all suggests to me that the online community take their cyber liberties very seriously. One thing I would say is that it makes sense to have robust policies and procedures in place, and to implement them appropriately. It would be advisable to seek professional advice when doing so.

Some of the other attendees have also posted their own comments on the event, see pangloss and Simon Deane-Johns of Zopa.

Software patents "lost in lawyer land"

Or at least so says the EPO, according to Lucy Sherriff at The Register: "the system is overwhelmed, overly bureaucratic, and hopelessly lost in lawyer land".  Readers might be surprised to hear that actually we lawyers don't live in a different land and, perhaps even more surprisingly, on the whole we tend to approve of increasing clarity in what we do (at least in the UK following the principles of the Woolf reforms).

This is one reason why, in contrast to many of the vocal individuals who opposed the old software patent directive that was shot down in 2005, we've tended not to dismiss outright the concept of reforming the principles around the grant of software patents (see various previous posts on Naked Law for examples).  As Lucy says: "Even though the European Parliament rejected the CII directive, that doesn't mean the status quo is OK. It just means that the CII directive was not the right update."

The concern from practitioners is that there is no uniform approach to patenting software across the EU (let alone in the rest of the world).  It is encouraging that Alison Brimelow, the new head of the EPO, recognises this: "What we need is not more patents, but more good patents".  IPKat has more information about Ms Brimelow here.

When data is lost but not forgotten

Intellect held an interesting meeting yesterday on the subject of security breach notifications - the idea that when an organisation loses data, it should tell the subjects of the data. There are pros and cons to this. Pros - the individual has the opportunity to take action to limit their losses (cancelling the card; checking their credit report). Cons - does it really encourage organisations to improve security, and would the public simply ignore mailshots notifying them of breaches if they arrived regularly?

At present, there is no explicit requirement to notify data subjects of a security breach under UK law, although such notification is arguably one of the "appropriate measures" which data controllers are required by the Data Protection Act to put in place to protect personal data against unlawful processing.

Whilst the speakers at Intellect were focussing on how to prevent leakage of data, this appears to be less of an issue for my neighbours in Cambridge, some of which have taken the interesting step of naming their (unsecured) wireless network after their house address. None at present include dates of birth and their mother's maiden name, but it is probably only a matter of time. One (secured) wireless networked neighbour had a legal question for me on the topic: is it unlawful to name your wireless network after someone else's home address? It would certainly give cybersquatting a new meaning...