Archive for: April, 2007

I am not against IP

April 27th, 2007, Tomasz Rychlicki

Today is the World Intellectual Property Day. I think, I don’t need to explain that I’m not against the so-called intellectual property. I also do not agree with Richard Stallman’s controversial statements, but I share his thoughts and views that are included in the article entitled “Did You Say “Intellectual Property”? It’s a Seductive Mirage“. When it comes to trademarks, as a part of the IP domain, let me cite few excerpts from the judgment in Hanover Star Milling Co. v. Metcalf, 240 U.S. 403 (U.S. 1916), PDF file.

In the English courts it often has been said that there is no property whatever in a trade-mark, as such.
(…)
In short, the trade-mark is treated as merely a protection for the good-will, and not the subject of property except in connection with an existing business. The same rule prevails generally in this country, and is recognized in the decisions of this court already cited.

What is more interesting, the Grand Chamber of the European Court of Human Rights ruled on 11 January 2007, in Anheuser-Busch Inc. v. Portugal (no. 73049/01), that a trademark is a property as it is provided for in the article 1 of the Protocol no 1, CETS no. 009 to the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS no. 005.

By the way, a well-known American professor and a great expert on copyright law Jane Ginsburg uses the title Professor of Literary and Artistic Property Law. I’d also like to add that I don’t agree with Stephan Kinsella’s and his arguments put forward in the article entitled “Against Intellectual Property“, PDF file.

Categories: European Convention on Human Rights | International law | US law | copyright law | trademark law.

Copyright law, case VI ACa 1012/05

April 22nd, 2007, Tomasz Rychlicki

The Appellate Court in Warsaw in its judgment of 14 March 2006, case file VI ACa 1012/05, published in the Jurisprudence of Appellate Courts (in Polish: Orzecznictwo Sądów Apelacyjnych) of 2007, No 12, item 36, p. 56, held that when it comes the legal protection of the author’s work it does not matter how the infringer came into the possession of the work, or how the work arrived to him, in particular, it does not matter that the work, which is the subject of the infringement came to the infringer as unsolicited correspondence sent electronically, the so-called spam. The protection is not only afforded to the well known creator, whose works are published in big numbers, but to anyone whose rights to a protected work have been infringed in any possible way, copyright law makes no distinctions in the field of protection depending on the value of the work and the recognition enjoyed by the author.

See also my posts entitled “Polish regulations on copyright” and “Polish case law on copyright“.

Categories: Art. 1 ARNR | Art. 79 ARNR | Polish Act on Authors Rights and Neighbouring Rights | Polish Appellate Court | case law | copyright infringement | copyright law | copyrightable subject matter | legal regulations on computers networks.

Effective Wendy

April 15th, 2007, Tomasz Rychlicki

I’m not going to write too long story. You could familiarize yourself with the issue while reading my post entitled “Effectiveness of removals from YouTube“. After another intervention filed by Wendy Seltzer, the questioned short movie she has uploaded on Youtube was restored. You may watch it for now.

See this movie on YouTube:

But even professor Seltzer has doubts that the Super Bowl’s clip that was questioned by NFL’s lawyers will be available for much more longer period of time. Just read her post at wendy.seltzer.org. There is a whole story about the whole problem she faced. Well, all I can do, is to save this file, FLV format. If you’ve missed some stories posted earlier on this website, then let me tell you, that it is published in the FLV format. I suggest you to use VLC software for watching it. It works with almost each operating system and its free.

Categories: 17 U.S.C. | US law | copyright law | movies.

Legal hacking

April 7th, 2007, Tomasz Rychlicki

In 2004, Jerome Heckenkamp gained unauthorized access (colloquially, he hacked) to servers of corporations such as Qualcomm, Cygnus Solutions and eBay. Evidences of his actions were gathered also by a campus network administrator where Jerome’s computer was connected. He got them by hacking into the Heckenkamp’s Linux box. Judge Sidney R. Thomas ruled in United States v. Heckenkamp, 2007 U.S. App. LEXIS 7806 (9th Cir. 2007), PDF file, that such actions were justified and did not violate the Fourth Amendment provisions.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Jeffrey Savoy’s “hacking searches” were acknowledged as “special needs” exception and therefore the FBI was not required to obtain a search warrant. Jerome Heckenkamp was convinced based on regulations included in 18 U.S.C.S. § 1030(a)(5)(B) – Computer Fraud and Abuse Act (CFAA) of 1986, Pub. L. No. 99-474, 100 Stat. 1213 (Oct. 16, 1986) amending Counterfeit Access Device and Computer Fraud and Abuse Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (Oct. 12, 1984).

In Polish law so-called “hacking” crimes are penalised by provisions included in the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Article 267.
§ 1. Whoever, without being authorised to do so, acquires information not destined for him, by opening a sealed letter, or connecting to a wire that transmits information or by breaching electronic, magnetic or other special protection for that information shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
§ 2. The same punishment shall be imposed on anyone, who, in order to acquire information to which he is not authorised to access, installs or uses tapping, visual detection or other special equipment.
§ 3. The same punishment shall be imposed on anyone, who imparts to another person the information obtained in the manner specified in § 1 or 2 discloses to another person.
§ 4. The prosecution of the offence specified in § 1 – 3 shall occur on a motion of the injured person.

In the international legal context such crimes were first covered by the Council of Europe Convention on Cybercrime signed in Budapest on November 23, 2001, CETS No. 185. The United States was one of 30 countries that signed the Convention on November 23, 2001. On August 2, 2006, the US Sentat ratified it.

You may find more information about the Fourth Amendment at findlaw.com website.

Categories: Art. 267 CRC | Convention on Cybercrime | European Convention on Human Rights | Polish Criminal Code | Polish law | US law | computer crime | criminal law.