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Joining a growing list of takedowns this week, music...



Joining a growing list of takedowns this week, music blog RnBXclusive.com has had its domain name confiscated by the United Kingdom Serious Organised Crime Agency (SOCA). The move is unprecedented because it is the first (publicised) case in which a .com gTLD domain name has been seized by a UK government agency.  It is unclear what wrongs the website operator had committed, though a statement from SOCA suggests that they involve copyright infringement on a commercial scale:

The website in question specialised in RnB and enabled access to music obtained by hacking, including some which had not yet been released. IFPI estimates losses to legitimate businesses and artists caused by the site to be £15m a year. During the week running up to arrest phase the website had 70,000 users daily, mainly males aged 18 to 25 years. (emphasis added)

The concerning phrase here is ‘enabled access’.  If the music was not being hosted on the blog and was not actually procured or obtained by the website operator, it seems at least doubtful whether the website was committing an actionable wrong by linking or otherwise enabling access to the files in question.  At most, this might amount to the civil statutory tort of authorising copyright infringement.

Many have also pointed out that the warning message being displayed by SOCA in place of the site’s original content was highly misleading.  I look forward to hearing the matter determined fully in court.

In an astonishing display of executive power, popular business...



In an astonishing display of executive power, popular business form creation tool JotForm has had its domain name suspended by registrar GoDaddy at the ‘request’ of the US secret service.  It is unclear whether a court order was obtained or whether the request came from a state prosecutor.  Either way, this is a terrible denial of the right to a fair trial: JotForm was not notified of the action, has suffered irreparable damage to its business reputation, and it is unclear of what wrong they are accused.

Canada Supreme Court holds ISPs exempt from local content rules

In Alliance of Canadian Cinema, Television and Radio Artists Bell Aliant Regional Communications LP [2012] SCC 4, the Supreme Court of Canada upheld a finding that Bell, Rogers and other Canadian ISPs are not broadcasting undertakings” within the meaning of the Broadcasting Act 1991 (CA), which means they are exempt from the obligation to contribute to local content.  The Court held:  Read more »

Canada Supreme Court holds ISPs exempt from local content rules

In Alliance of Canadian Cinema, Television and Radio Artists Bell Aliant Regional Communications LP [2012] SCC 4, the Supreme Court of Canada upheld a finding that Bell, Rogers and other Canadian ISPs are not broadcasting undertakings” within the meaning of the Broadcasting Act 1991 (CA), which means they are exempt from the obligation to contribute to local content.  The Court held:  Read more »

Eolas jury holds embedded hypertext patent invalid

Eolas, a company which many describe as a “patent troll”, has suffered a serious set-back in litigation against, Google, Amazon and others.  As has been widely reported, a Texas jury found that the patent was invalid for want of novelty.  So, what was the patent?  According to the specification:

A system allowing a user of a browser program on a computer connected to an open distributed hypermedia system to access and execute an embedded program object. The program object is embedded into a hypermedia document much like data objects.

Relevantly, claim 1 claimed:

A method for running an application program in a computer network environment, comprising:

  1. providing at least one client workstation and one network server …
  2. a browser application … to display, on said client workstation, at least a portion of a first hypermedia document received over said network from said server … and wherein said embed text format is parsed by said browser to automatically … display [it] and enable interactive processing …

In other words, the plaintiff claimed something akin to the tag, utilised in a web browser.  After expert evidence from Tim Berners-Lee and Dave Ragett, the jury found that the claimed invention was not new as at 17 October 1994.  Read more »

Eolas jury holds embedded hypertext patent invalid

Eolas, a company which many describe as a “patent troll”, has suffered a serious set-back in litigation against, Google, Amazon and others.  As has been widely reported, a Texas jury found that the patent was invalid for want of novelty.  So, what was the patent?  According to the specification:

A system allowing a user of a browser program on a computer connected to an open distributed hypermedia system to access and execute an embedded program object. The program object is embedded into a hypermedia document much like data objects.

Relevantly, claim 1 claimed:

A method for running an application program in a computer network environment, comprising:

  1. providing at least one client workstation and one network server …
  2. a browser application … to display, on said client workstation, at least a portion of a first hypermedia document received over said network from said server … and wherein said embed text format is parsed by said browser to automatically … display [it] and enable interactive processing …

In other words, the plaintiff claimed something akin to the <embed> tag, utilised in a web browser.  After expert evidence from Tim Berners-Lee and Dave Ragett, the jury found that the claimed invention was not new as at 17 October 1994.  Read more »

"Either way, when international accords, like ACTA, are conceived and constructed under a cloak of..."

““Either way, when international accords, like ACTA, are conceived and constructed under a cloak of secrecy,” [Senator Ron] Wyden [D-OR] said, “it is hard to argue that they represent the broad interests of the general public. The controversy over ACTA should surprise no one.””

- ACTA ‘leaves to the discretion of each country the definition of what constitutes a “commercial” level of piracy, so some countries might choose to search travelers’ laptop computers and digital music players in search of illegal downloads. ACTA supporters reject the criticism and say action is essential when legitimate owners of intellectual property are losing tens of billions of dollars annually to counterfeiting and illegal sharing. They accuse some opponents of deliberately exaggerating ACTA’s provisions to fan fears.’

Liability for defamatory statements in Twitter hashtag feeds

Brett Debritz asks an interesting question:

what if somebody were to tweet an extremely defamatory or racially offensive remark using the Nova-nominated hashtag and it ended up on the company’s website for a sustained period of time? What if somebody sued? Who would be responsible: the author (if they could be identified) or the publisher?

Different jurisdictions will answer this question differently.  In England (and probably Australia), the question is likely to turn on two factors: (1) whether the website operator is regarded as the “publisher” of the relevant statement; and (2) whether the operator had actual knowledge of the statement.  By analogy with Bunt v Tilley and DesignTechnica v Metropolitan Schools & Google, there is a strong argument that the “publisher” is the person who authored the defamatory statement and caused it to be posted to Twitter.

Although Byrne v Deane suggests that someone who controls a facility (in that case, a bulletin board in a club house) to which defamatory material has been posted can be liable for its dissemination, there is little that a website operator can do to control the flow of comments in a Twitter hashtag feed: short of removing the feed widget entirely, tweets cannot be deleted and what shows up there is entirely within the purview of tweet authors and Twitter.  Whether Twitter faces liability is a more complicated question, and is likely to start implicating questions of safe-harbours under the E-Commerce Directive.  Read more »

Liability for defamatory statements in Twitter hashtag feeds

Brett Debritz asks an interesting question:

what if somebody were to tweet an extremely defamatory or racially offensive remark using the Nova-nominated hashtag and it ended up on the company’s website for a sustained period of time? What if somebody sued? Who would be responsible: the author (if they could be identified) or the publisher?

Different jurisdictions will answer this question differently.  In England (and probably Australia), the question is likely to turn on two factors: (1) whether the website operator is regarded as the “publisher” of the relevant statement; and (2) whether the operator had actual knowledge of the statement.  By analogy with Bunt v Tilley and DesignTechnica v Metropolitan Schools & Google, there is a strong argument that the “publisher” is the person who authored the defamatory statement and caused it to be posted to Twitter.

Although Byrne v Deane suggests that someone who controls a facility (in that case, a bulletin board in a club house) to which defamatory material has been posted can be liable for its dissemination, there is little that a website operator can do to control the flow of comments in a Twitter hashtag feed: short of removing the feed widget entirely, tweets cannot be deleted and what shows up there is entirely within the purview of tweet authors and Twitter.  Whether Twitter faces liability is a more complicated question, and is likely to start implicating questions of safe-harbours under the E-Commerce Directive.  Read more »

Dutch Supreme Court upholds conviction for theft of virtual objects

Dutch Supreme Court upholds conviction for theft of virtual objects:

According to news reports, the Dutch Supreme Court has upheld a lower court’s conviction of a teenager for assaulting a younger boy and stealing virtual objects from an online RPG.  The victim was forced to transfer the objects to his attackers in the game world whilst being threatened with a knife in the real world:

The suspect’s lawyer had argued the amulet and mask “were neither tangible nor material and, unlike for example electricity, had no economic value.”

But the Netherlands’ highest court said the virtual objects had an intrinsic value to the 13-year-old gamer because of “the time and energy he invested” in winning them while playing the game. …

It said he and another youth beat and kicked the boy and threatened him with a knife until he logged into RuneScape and dropped the objects in 2007.  One of the thieves, who was also playing the game, was then able to pick up the items, making them his virtual property.

The essence of the Court’s reasoning was: “due to the digitization of society, a virtual reality has been created, all aspects of which cannot be dismissed as mere illusion where the commission of criminal acts are not be possible” .  On the question of whether the objects could be considered “goods” (property capable of theft within the meaning of the Dutch Penal Code), the Court commented (with apologies for my poor translation):  Read more »