Intellectual Property Law Internet Law IT Law Computer Law

My post in Polish language is long and probably boring for most of you. It concerns Justyna Steczkowska’s naked pictures taken during her holiday at Turkish Rivera and being published by “Super Express”, which is one of many Polish tabliods. I also wrote about some comments that were posted by Polish lawyers regarding the right of privacy issue and I wanted to write a comparative note about American and Polish legal systems but I am way too busy for such undertaking. I can only tell you that Maciej Ślusarek, an attorney representing Justyna Steczkowska, will have easier case in Poland as opposed to the US legal reality. Mr. Ślusarek previously won a case against “Super Express” publisher and editor-in-chief. It was a very important judgment of the Appellate Court in Warsaw of 29 September 2006, act signature I ACa 385/2006. Mr. Ślusarek represented another Polish singer Edyta Górniak. The Court held that there is a need to distinguish the persons carrying out the public functions, if a person due to the character of those functions might be subjected to public control and the openness of their life is justified by the important society interest, from the commonly known persons, who are not subjected to such intense public control. The distinction included in court’s ruling is of course of great importance for protection limitations established for such persons.

The protection of personal image/publicity rights is provided in the Polish Civil Code in §23. This provision outlines the personal image as one of the personal property - an intangible personal right. Furthermore, a person who would like to claim an infringment of his/her rights might also exercise the civil protection of personal image provideded by provisions included in the Polish Act on Authors rights and Neighboring Rights of 4 February 1994 (Dziennik Ustaw No 24, pos. 83), consolidated text of 16 May 2006 (Dziennik Ustaw No 90, pos. 631), with later changes.

Article 81.
1. The dissemination of an image shall require the permission of the person presented in that image. Unless there is a clear reservation, such permission shall not be required if such person has received the agreed price for posing.
2. The permission shall not be required for the dissemination of the image:
1) of a commonly known person, if such image has been made in connection with his/her performance of public functions and, in particular, political, social or professional functions,
2) of a person constituting only a detail of a whole, such as a meeting, a landscape, or a public event.
(…)
Article 83.
The provisions of Article 78, paragraph 1 shall apply respectively to claims brought due to the dissemination of the image of the person presented in it and the dissemination of correspondence without the required permission of the person to whom it was addressed; such claims may not be asserted after the lapse of twenty years from the death of that person.

Additional protection is also provided by regulations in the Act of 26 January 1984 on Press Law, the Penal Code and the Act of 29 August 1997 on Personal Data Protection. The protection of privacy and publicity may also derive from the Constitution of the Republic of Poland of 2 April 1997.

Article 47
Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.
(…)
Article 54
1. The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.
2. Preventive censorship of the means of social communication and the licensing of the press shall be prohibited. Statutes may require the receipt of a permit for the operation of a radio or television station.

and from the European Convention on Human Rights of 4 November 1950.

The below citation is taken from the article available at www.slashdot.org website. I think it will perfectly fit into legal research category.

“The politicization of Bush’s Justice Department, which this week was officially determined to be illegal, has a funny side too. Sometime in 2005-2006, White House Liaison Jan Williams attended a seminar on LexisNexis searches, and wrote one herself. When she left, she passed it on to her successor Monica Goodling in an email. Justin Mason, author of SpamAssassin, is skeptical about its accuracy:

[First name of a candidate]! and pre/2 [last name of a candidate] w/7 bush or gore or republican!
or democrat! or charg! or accus! or criticiz! or blam! or defend! or iran contra or clinton
or spotted owl or florida recount or sex! or controvers! or racis! or fraud! or investigat!
or bankrupt! or layoff! or downsiz! or PNTR or NAFTA or outsourc! or indict! or enron
or kerry or iraq or wmd! or arrest! or intox! or fired or sex! or racis! or intox! or slur!
or arrest! or fired or controvers! or abortion! or gay! or homosexual! or gun! or firearm!

Needless to say, when asked about it, Williams first said she didn’t remember ever seeing it, then said she’d used an edited version just once. LexisNexis records show she used it, as shown, 25 times.” Note that ’sex!’ appears twice in the query. Must be VERY important.

I would like to comment on the whole issue in one sentence: better protect then sue. I know I shouldn’t issue statements like that because being a lawyer I am obliged to write more sophisticated. Well, it looks like I am not a good lawyer. Ad rem.

Details of how to copy the Oyster cards used on London’s transport network can be published, a Dutch judge has ruled.

More details in the article available at www.bbc.co.uk website, and I think that a quotation of Bruce Schneier is the best punchline.

As bad as the damage is from publishing - and there probably will be some - the damage is much, much worse by not disclosing.

Very interesting and funny situation happened.

“Piracy is BAD” proclaims every copyright dependent industry lobby group. “Downloading is stealing” is another popular one. How about “downloads are a lost sale”? Ubisoft clearly didn’t believe that last one, as they distributed a no-cd patch from the scene group RELOADED as a fix for one of their games.

More details available at www.torrentfreak.com and www.forums.ubi.com websites. I am not sure if such warez release was preed. If someone of my readers has more information please let me know.

I got this story from the post available at www.adkuchni.blox.pl website which is devoted to marketing stories in comic shorts.

I found a country without advertisments! It’s Cuba. Only billboards, posters I saw during my trip were governmental expression of revolutionary ideas: Fidel in exchange with Che Guevara and Chavez.

And how should I explain to a Cuban guy I met (my Spanish is fading): ¿donde trabajo? – where do I work?

It went like that:

Cuban guy: ¿Donde trabajas? / Where do you work?

I: En la agencia de publicidad / In advertising agency

C: ¿Donde? / where?

I: Agencia de publicidad / In advertising agency

C: ¿Que es eso? / What is this?

After short explaination I heard from him:

C: Si! Es como la agencia de propaganda comercial! / I get it! It’s like: propaganda agency but for commercial.

You’ll also find a link to www.flickr.com website in comments. It presents many pictures of São Paulo City without any advertising.

There is a story of some logo “borrowing” described at www.ecogeek.org website. Paweł Tkaczyk posted a short note about a similar situation in Poland. If someone of you knows about any of such “borrowings” or “similarities” then I’d be happy to read about it. Trust me, I’m not going to sue anyone I just need it for, let’s say “scientific” purposes. :)

Sometime ago I did a post titled “It’s going to be interesting decision“. It was issued yesterday.

Blizzard owns a valid copyright in the game client software, Blizzard has granted a limited license for WoW players to use the software, use of the software with Glider falls outside the scope of the license established in section 4 of the TOU, use of Glider includes copying to RAM within the meaning of section 106 of the Copyright Act, users of WoW and Glider are not entitled to a section 117 defense, and Glider users therefore infringe Blizzard’s copyright. MDY does not dispute that the other requirements for contributory and vicarious copyright infringement are met, nor has MDY established a misuse defense. The Court accordingly will grant summary judgment in favor of Blizzard with respect to liability on the contributory and vicarious copyright infringement claims in Counts II and III.

Tiffany (NJ) Inc. v. eBay Inc., No 04 Civ. 4607 (RJS) (S.D.N.Y July 14, 2008). Tiffany’s motion was rejected. There will be an appeal no dubt. Eric Goldman published some comments and Marty Schwimmer has added judgment’s text to Scribd.

You will find more details regarding my laconic topic in the article available at www.arstechnica.com website. Logic won over lobby. Very good.

When I see such legislative initiatives as reported by the European Digital Rights at www.edri.org website, I start to doubt about European integration if the process of adopting directives looks like that (you do remember how was the Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions adopted and all this controversy with ignoring the voice of one country during the Council meeting right?). I see a lot of advantages of the Community Trade Mark system but lobbying in the European Union makes me annoyed at the bureaucrats and European bureaucracy and you should read this post in such manner. ;)

Update on July 8, 2008.
Philippe Aigrain has written a very detailed post regarding lobby process within the EU in the field of IP law. It is available at www.paigrain.debatpublic.net website.

1. WALL-E records audio from his favorite movie, Hello Dolly, putting in onto his own digital recorder (bypassing the macrovision DRM on the tape). A COPYRIGHT CRIME UNDER C-61

2. WALL-E archives the audio, he doesn’t merely time-shift it. He listens repeatedly! A COPYRIGHT CRIME UNDER C-61

3. WALL-E shares his DRM-broken music with his friend, another robot named EVE. A COPYRIGHT CRIME UNDER C-61

4. WALL-E watches Hello Dolly on multiple evenings, on the screen of an iPod. Hello Dolly is not available through the iTunes store, therefore he broke the videocassette DRM when he platform shifted it. A COPYRIGHT CRIME UNDER C-61

All details of this criminal personality are described in the article available at www.sffaudio.com website.

My last post has triggered some reponses so I’d like to clarify it, in a really short explanation. There is no requirement for copyright protection and enforcement in Poland. The Polish Act on Authors rights and Neighboring Rights of 4 February 1994 (Dziennik Ustaw No 24, pos. 83), consolidated text of 16 May 2006 (Dziennik Ustaw No 90, pos. 631), with later changes, explicitly provides that:.

Art. 1, sec. 4
The creator is eligible for protection independently of compliance with formalities of any kind.

How does it work in the US? 17 U.S.C. § 411. Registration and infringement actions (emphasis mine):

(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and except for actions for infringement of copyright in Berne Convention works whose country of origin is not the United States, and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title (…)

What does it mean? It means that an effective enforcement of copyright rights is not so easy for the owner. One more time - it applies to any United States work.

Today is the official “premiere” of the Office for Harmonization in the Internal Market’s website and beginning July 1, 2008, the US Copyright Office is offering online registration of claims to copyright through the electronic Copyright Office (eCO) website.