Intellectual Property Law Internet Law IT Law Computer Law

In Re Boucher, 2007 WL 4246473 (United States District Court for the District of Vermont, Nov. 29, 2007), PDF file. If you are not interested in the nuances of US law then the title of an article available at www.news.com website will tell you all about the issue of the aforementioned judgment.

Judge: Man can’t be forced to divulge encryption passphrase.

Couple of years ago I thought that such problem could be solved by simple sentence.

You have the right to remain silent and refuse to answer questions.

But Civil law lawyers will recall old Latin maxim nemo se ipsum accusare tenetur at once. Polish Criminal Proceedings Code of 6 June 1997. (Dziennik Ustaw No 89, pos. 555), with later changes.

Art. 74. § 1. The defendant has no duty to prove his/her innocence or a duty to provide evidences for his/her disadvantage

Warner Bros, the distributor of “The Dark Knight” movie, deemed as a success the period of 38 hours which lasted from the premiere of the Dark Night’s sequel to appearance of first unauthorized copies of this movie. I guess it is all about The.Dark.Knight.CAM.XviD-TRADINGSTANDARDS, The.Dark.Knight.TS.XVID-PreVail and The.Dark.Knight.PROPER.TS.XViD-mVs releases and all derivatives you may find in p2p networks. More details in the article available at www.webtvwire.com website.

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.

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.

I browsed through specific or peculiar artworks of Rob Nance that are available at his website - www.artforrobots.com. I started to think more when I saw “Poseable Paper Pope”. Parody. Bad taste? De gustibus non disputandum est. Publicity right? It is quite relaxing situation for Mr Nance that Vatican does not sue so eagerly as it usually happens in the US. Just check such case as White v. Samsung, 971 F. 2d 1395 (9th Cir. 1992). Ms Vanna White (I have to add that Magda Masny was her counterpart in Poland) has sued Samsung for using her “image” in Samsung’s ads. I really really recommend you to read this judgment. Below, on the left, you’ll find a black and white image of Ms White and on the right, her “likeness” that was used in Samsung advertising campaign.

Judge Alex Kozinski wrote opinion for Vanna White v. Samsung, 989 F.2d 1512, 26 U.S.P.Q.2d 1362, 21 Media L. Rep. 1330 (9th Cir. 1993), which was the petition for rehearing in the above mentioned case. You may already know that I like his style and I often cite his profound deliberations as I did it in the post titled “Oh, those Internet’s contracts“.

A small exercise for your legal skills. Please identify legal problems and issues concerning those two posters. First one is the advertising poster of Jacek Graniecki’s music achievements, he is better known in Poland as TEDE. The second one was used to promote a movie titled “Karol: A Man Who Became Pope“.

Selling botnets for particular attacks, black markets for stolen identities, and malware construction kits are all now par for the course for the increasingly commercial malware industry. Discovering that malware authors have actually turned to End-User License Agreements (EULAs) in an attempt to protect their own intellectual property, however, most definitely qualifies as something new, different, and beautifully ironic.

More details in the article available at www.arstechnica.com website.

What about the eforcement of such “agreement” and the US courts? I guess there is no dubt that such contract would be deemed as null and void. See holding in the case Weisbren v. Peppercorn Prods., Inc., 41 Cal. App. 4th 246, 262, 48 Cal. Rptr. 2d 437, 447 (1995), citing Lewis & Queen v. N.M. Ball Sons, 48 Cal. 2d 141, 150, 308 P.2d 713, 719 (1957).

The courts generally will not enforce an illegal bargain or lend their assistance to a party who seeks compensation for an illegal act. The reason for this refusal is not that the courts are unaware of possible injustice between the parties, and that the defendant may be left in possession of some benefit he should in good conscience turn over to the plaintiff, but that this consideration is outweighed by the importance of deterring illegal conduct. Knowing that they will receive no help from the courts and must trust completely to each other’s good faith, the parties are less likely to enter an illegal arrangement in the first place.

I saw Untraceable. I read a review which is available in the article at www.washingtonpost.com website. I know this is “Hollywood style” so I ask you to treat this post with a pinch of salt. The best and the most funniest parts?

BOX
But why’d he pick Restom, when he had 434 other dishonest, yellowtied douche bags to choose from?

MARSH
Good question.

Box throws her a smile, unused to the compliment.

MARSH (cont’d)
I know because I asked it myself.
(beat)
The Director testified before him once. Restom sits on the House Judiciary Committee. He’s a huge supporter of Net Neutrality. All traffic treated equally. No restriction on content.

BOX.
You’d think the piece of shit would be for that.

MARSH
Yeah, you would.

Was it hidden propaganda against Net Neutrality? Nah, I do not want to act like people searching for some conspiracy theories so I found better part.

Elmer is led into the room by the other Officer. Box sees stacks of DVD’s everywhere, all bearing handwritten labels.

BOX (cont’d)
You like movies, huh?

ELMER
Who doesn’t?

BOX
Me. You burn your own, huh?

Box pops a DVD in a player and hits play.

BOX (cont’d)
That’s illegal.

Elmer smirks. Box hits pause, freezing the FBI WARNING about illegal copying. He throws Elmer a dead-serious glance.

The movie ends with a very important question that was asked during final chat.

Where can I download this movie?

My simple answer is www.thepiratebay.org and the trailer is available for free and without the risk of being prosecuted. :)

There is a short article availabe at www.wired.com website where you may read about some thoughts of Harry Sintonen regarding security of couple of websites. As from the media point of view the most spectacular cross-site scripting attack concerned CIA’s website. But I found on Harry’s list other addresses that are worthy a short notice here, for instance, the official website of the European Parliament. You may ask why? Because there is another article available at www.gazeta.pl website (in Polish language) where Waldy Dzikowski (the chief of Platforma Obywatelska’s parliamentary club) tells about how he opts about electronic elections to the European Parliament which will be held in another thirteen months. I have to admit that I am not sure who is supporting Mr Dzikowski because there is always someone who has the interest to supply the Republic of Poland with e-voting infrastructure or as Witold Drożdż from the Ministry of Interior and Administration said “technical and organization” infrastructure. When I think about such problems as faced by the CIA or European Parliament websites then I instantly wonder if someone can assure me about security and what is even more important about the lack of frauds in the process of electronic voting? Of course, we have proper crminal provisions against crimes aimed at voting process in the Polish Penal Code of 6 June, 1997. Dziennik Ustaw No 88, pos. 553, with later changes.

Chapter XXXI. Crimes against elections and referendum
Art. 248.
Article 248. Whoever, in connection with elections to the Sejm, Senate, election of the President of the Republic of Poland, elections to European Parliament, local elections or referendum:
(…)
3) damages, hides or forge reports or other election or referendum documents,
(…)
4) interferes or allow to interfere with the collecting or counting votes
(…)
5) gives another person unused voting card before an end of voting or gets an unused voting card from another person in order to use it in voting,
- shall be subject to the penalty of deprivation of liberty for up to 3 years.
(…)
Art. 250a. § 1. Whoever, being entitled to vote, gets financial or personal benefits or requests such benefit for voting in a given way, shall be subject to the penalty of deprivation of liberty for a term of between 3 months up to 5 years.
§ 2. The same penalty should apply to a person which gives financial or personal benefits to a person entitled to voting in order to induceaby such person to vote in a given way or for voting in a given way.

Art. 251. Whoever, in violation of regulations on secrecy of votiong, against the will of a voter, acquaints with the content of a vote, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.

As you can see there are some possibilities. There are also “anti-compromise” regulations (sic!)

Chapter XXXIII. Crimes against protection of information
(…)
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.
(…)
Art. 268a. § 1. Whoever, without being authorised to do so, destroys, damages, removes, changes lub makes an access to data difficult or in a significant way disrupts or prevents from the automatic process, gathering or transmission of such data, shall be subject to the penalty of deprivation of liberty for up to 3 years.
(…)
Art. 269.§ 1. Whoevery, damages, removes or changes information data of particular importance for country’s defences, safety of transportation, function of governmen administration, other state’s organ or state’s institution or local government albo zakłóca disrupts or prevents from the automatic process, gathering or transmission of such data, shall be subject to the penalty of deprivation of liberty for a term of between 6 months up to 8 years
§ 2. The same penaly should apply to a person who commits offences mentioned in § 1, by destroying or replacing the information carrier or by destroying or damaging a device serving for automatic processing, gathering or transfering of information data.

Art. 269a. Whoever, without being authorised to do so, by transmission, destroy, removing, damaging or changing information data, in significant manner disrupts the work of a computer system or a teleinformatic network, shall be subject to the penalty of deprivation of liberty for a term of between 3 months up to 5 years

Art. 269b. § 1. Whoever, produces, acquires, sells off or makes available to other persons devices or computer software adapted to perform a crime mentioned in art. 165 § 1 pt 4, art. 267 § 2, art. 268a § 1 or § 2 in connection with § 1, art. 269 § 2 or art. 269a, and computer passwords, access codes or other data that allow for the access to information stored in a computer system or teleinformatic network, shall be subject to the penalty of deprivation of liberty for up to 3 years.

This list is really long right? I asked my Polish readers if they know any cases regarding such crimes. I guess we have a really small percentage. The question is if it’s a really small percentage of crime detection or such crimes itself?

The Polish newspaper Gazeta Wyborcza published an article on its website www.gazeta.pl about Polish teenager who was sentenced for sending naked photos of his friend through the IM (Gadu-Gadu).

The boy (now 19 years old) pleaded guilty and was convicted for 1,5 year of jail time. As a probation the sentence is in the stay of execution for 3 years. The girl was living in a small town of Chełmża and she said she just wanted to impress her friend from a school - Paweł G. She took her naked pictures in 2006 (she was 14 years old) and sent them to him via Gadu-Gadu. After couple of days all town was talking about those pictures. Students were sending these photos to each others via cellphones and over the Internet. The principal of the school where those students were attending has informed a prosecuting attorney and the local department of education about this issue.

My dear English readers, I have to admit that I’d like to write more about this case but the biggest problem is with Polish courts (and my English skills ;) which do not publish such judgments. It is also hard to say on which grounds the prosecution based its charges. It was probably the Polish Penal Code of 6 June 1997 (Kodeks Karny z dnia 6 czerwca 1997 r. Dziennik Ustaw Nr 88, poz. 553), Article 202:

§ 3. Whoever produces, for the purpose of dissemination or imports or propagates pornographic material in which minors under the age of 15 participate, or pornographic material associated with the use of violence or the use of an animal shall be subject to the penalty of the deprivation of liberty for a term of between 6 months and 8 years.

§ 4. Whoever records pornographic material in which minors under the age of 15 participate, shall be subject to the penalty of the deprivation of liberty for a term of between one year and 10 years

§ 4a. Whoever gets, keeps or owns pornographic material in which minors under the age of 15 participate, shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.

They say they loose beacause of the so-called “piracy”? Well, not exactly as you may read in the article available at www.arstechnica.com website

data that shows the US box office doing its biggest year of business ever in 2007, growing 5.4 percent over 2006 and bringing in $9.63 billion.

They have really good lawyers and cute dogs sent against copyright infringers and that is ok. But finally, facts are against their pitiful propaganda. By the way, have you heard that copyright infringement continues to pay? No? Check www.techcrunch.com website. Another interesting news. It looks like the RIAA keeps receiving the settlement money for itself. Artists are going to sue their “defender”. More details in the article available at www.torrentfreak.com website.

Federico Biancuzzi wrote an article “The Laws of Full Disclosure” which is available at www.securityfocus.com website. There is a little part where he asked me some questions regarding Polish and European legal regimes.

The US case law. Atlantic Recording Corp. v. Brennan, 2007 U.S. Dist. LEXIS 96276 (D. Conn. 2007).

At least one aspect of Plaintiffs’ distribution claim is problematic, however, namely the allegation of infringement based on “mak[ing] the Copyrighted Recordings available for distribution to others.” (Compl. 13.) This amounts to a valid ground on which to mount a defense, for “without actual distribution of copies . . . there is no violation [of] the distribution right.” 4 William F. Patry, Patry on Copyright § 13:9 (2007)

Judge Janet Bond Arterton presents further more interesting conclusions. I guess it is even more important if you look at the whole P2P end-users suits issue.

In other similar cases brought by these Plaintiffs and other record labels, individual defendants have raised a host of colorable defenses; but due to the varying procedural postures, the viability of these defenses has largely yet to be conclusively determined. The defenses which have possible merit include: (1) whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive, see UMG Recordings, Inc. v. Lindor, No. 05-1095, 2006 WL 3335048, at 3 (E.D.N.Y. 2006) (finding the defense non-frivolous); Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 588 (6th Cir. 2007) (rejecting the defense as to a 44:1 damages ratio); see generally Blaine Evanson, Due Process in Statutory Damages, 3 Geo. J. L. & Pub. Pol’y 601, 637 (2005);2 and (2) whether the Plaintiffs and their recording industry peers, by bringing infringement suits like this one, have engaged in anticompetitive behavior constituting copyright misuse, see Lava Records LLC v. Amurao, No. 07-321 (S.D.N.Y. Jan. 16, 2007) (motion to dismiss copyright misuse counterclaim pending); Assessment Techs. of WI, LLC, v. WIREdata, Inc., 350 F.3d 640, 647 (7th Cir. 2003) (“The doctrine of misuse prevents copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly.”).

What do we have in Polish law as regards to this problem? Ustawa o prawie autorskim i prawach pokrewnych z dnia 4 lutego 1994 r. (Dziennik Ustaw Nr 24, poz. 83), tekst jednolity z dnia 17 maja 2006 r. (Dziennik Ustaw Nr 90, poz. 631).

Art. 116.
1. Any person who, without authorization or without respecting the conditions imposed, discloses another’s work in its original or in a derived form, or a performance, a phonogram or videogram or a broadcast shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.
2. If the perpetrator of the infringement commits the acts specified in paragraph 1 with a view to deriving a material profit therefrom, he shall be liable to a term of imprisonment of up to three years.
3. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of six months to five years.
4. If the perpetrator of the infringement defined in paragraph 1 acts unintentionally, he shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.

Art. 117.
1. Any person who, without authorization or without respecting the conditions imposed, fixes or reproduces another’s work in its original version or in a derived form, or a performance, a phonogram or videogram or a broadcast, at the same time authorizing the disclosure thereof, shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.
2. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of up to three years.

The subject of this post is my little suggestion for all lobbyists of the music industry. I decided to write about that after I read the article available at www.torrentfreak.com website about the idea of blocking the Internet for users who download “pirated” files. There is also an article available at www.arstechnica.com website about what happend in Denmark when they used “analogous ban” on the Pirate Bay.

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.

Details about this case in the judgment C-275/06, Promusicae.