Intellectual Property Law Internet Law IT Law Computer Law

In Capitol Records v. Jammie Thomas, CIV 07-3417 MJD/JJK (D.Minn. August 26, 2008), PDF file, Judge Michael J. Davis presented two very forcible arguments.

Plaintiffs and their supporters also urge the Court to consider an entirely separate title of the U.S. Code, Title 18, addressing criminal penalties for distribution of child pornography. In that context, the term “distribute” has been interpreted to include placing the material on a shared folder of a peer‐to‐peer network. See, e.g., United States. v. Shaffer, 472 F.3d 1219, 1223‐24 (10th Cir. 2007) (interpreting term “distribute” in 18 U.S.C. § 2252A(a)(2) to include placing child pornography in Kazaa folder and freely allowing others to access and download the files). The criminal statute regarding distribution of child pornography is unrelated to the Copyright Act. The Court does not find the comparison to criminal law persuasive.
(…)
there is no liability for an attempt to infringe under the Copyright Act, there is corresponding liability for attempted distribution in the criminal context. See 18 U.S.C. § 2252A (b)(1)

I can only add that extending the interpretation (interpretatio extensiva) is not even an option in Polish criminal law. This kind of analogy is prohibited in criminal law. Two most important and basic rules include prohibition of criminalizing of human acts by any regulation that isn’t a legal act adopted by the Polish parliament (Latin rule nullum crimen sine lege scripta) and the ban for extending analogy and interpretation to the detriment of the perpetrator (Latin rule nullum crimen sine lege stricta).

However, the Court does note that, while Congress has not added “offer to distribute” to § 106(3) of the Copyright Act.
(…)
The Court’s examination of the use of the term “distribution” in other provisions of the Copyright Act, as well as the evolution of liability for offers to sell in the analogous Patent Act, lead to the conclusion that the plain meaning of the term “distribution” does not including making available and, instead, requires actual dissemination.

I was wondering whether I should use a different title for this post. Something more like “how to overturn technological realities upside down by the law” but it is probably too pretentious and far too long. Ad rem. What is the problem? The problem is whether the act consisting of giving links within a website may be subject to legal liability (criminal, civil, etc.). Someone who studied history and specification of HTML for a while will probably smile and nag his or her head in the negative. Ok, so let’s think about couple of problems. First question: whether adding a link to a particular source may be subject to legal liability? Even if a certain resource contains illegal content, for example: materials containing child pornography. The second question: whether you can claim for the legal ban of the use of links, for example, whether someone can prohibit the use/indication of a link to my page. There are other questions and I have more examples, but these two seem most important to me for now. The issue raised in my second question appeared in the U.S. in two recent interesting cases.

In Jones Day v. BlockShopper.com, 1:2008 cv04572 (ND Ill.. August 12, 2008), a large law firm (and I was afraid to give up the name ;) - Jones Day has sued BlockShopper.com for trademark infringement by publishing links and information about two flats bought by lawyers working for Jones Day. The petition does not mention any copyright infringement claims. It included trade mark ifringement claims based on 15 U.S.C. § 1114 and § 1125(a)

Defendants’ use of the Jones Day Marks, in connection with their real estate advertisement scheme, is likely to deceive and cause confusion and mistake among customers as to the source or origin of the services provided or offered for sale by Defendants and the affiliation of Jones Day with those services and/or the sponsorship or endorsement of those services by Jones Day.

and false designation of origin claim based on 15 U.S.C. § 1125(a)

Defendants’ use of the Jones Day Marks, in connection with their real estate advertisement scheme, is likely to deceive and cause confusion among consumers as to the source of origin of the services offered by Defendants and the sponsorship or endorsement of those services by Jones Day.

and trade mark dilution claim based on 15 U.S.C. § 1125(c)

Defendants’ use of the Jones Day Marks is disparaging the distinctiveness of the Jones Day Marks.

In Reisinger v. Perez et. al, 2:2008 cv00708 ((EDWis. August 20, 2008), the City of Sheboygan, requested from Jennifer Reisinger to remove the link to the official site of the Police - www.sheboyganpolice.com. Initially, being impressed by the cease and desist letter, PDF, 52 KB, she has received, Mrs. Reisinger dediced to remove the aformentioned link. But after some time she decided to sue the city (in the person of Mayor Perez) for violation of freedom of speech granted her under the First Amendment to the Constitution in relation to the provisions of 42 U.S.C § 1983. Civil action for deprivation of rights.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

Of course, the question of liability for the use of links is a little bit more complicated if you use trade marks in the content of the link (for example: Do not buy Pepsi), or link’s content is potentially subject of libel (for example: he is really an id*ot), or when the content would include works protected by copyright. However, as you can see in the accompanying examples, the problem does not affect the process of linking to a resource, but only the relationship of resources and content between tags <A HREF=”"> and </A> and in my humble opinion that’s completely different issue.

Update on September 23, 2008.
I forgot to add a link to www.linksandlaw.com website.

It looks like not too much. In Dun & Bradstreet Software Services, Inc. v Grace Consulting, Inc., 307 F.3d 197 (3d Cir. 2002), cert. denied, 538 US 1032, 123 S. Ct. 2075 (2003), the court held that copying 27 lines of total 525,000 lines of computer software code is copyright infringement.

In Veritas Operating Corp. v Microsoft Corp., No. 06-0703, 2008 US Dist. LEXIS 8166 (W.D. Wash. Feb 4, 2008), the Court held that copying 54 lines of total 160,000 lines of computer software code is copyright infringement and such action is not eligible for de minimis defense.

2. Whether the Code at Issue is Protected by Copyright Law
To succeed on its copyright infringement claim, Veritas will have to prove that Microsoft “copied protected elements of [Veritas'] work.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir.2000), cert. denied, 531 U.S. 1126, 121 S.Ct. 881, 148 L.Ed.2d 790 (2000). Absent direct evidence of copying, such as an admission that defendant copied the work at issue, this factor is normally proven by circumstantial evidence of defendant’s access to plaintiff’s work and substantial similarity between the works. Id. Before the Court reaches the substantial similarity analysis, however, the Court must first filter out any non-protected material from the purportedly protected expression. Computer Assoc. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 710 (2d Cir.1992). As to whatever “golden nugget” of protected expression in the LDM code remains, the Court will then consider whether it is substantially similar to the allegedly infringing LVM code. Id.

i. Non-Protected Elements
*8 The section of code allegedly infringed, by both parties’ accounts, is a “transaction macro.” (Def.’s Mot. 26 (Dkt. No. 212 at 27), Pl.’s Resp. 26 (Dkt. No. 289 at 32).) Veritas’ expert Dr. Chase describes transaction processing as a “transactional update and recovery in the implementation of configuration changes to disk groups or packs.” (Chase Report ¶ 102 (Dkt. No. 296-3 at 61).) As best the Court can determine, the transaction macro essentially works to preserve data and prevent its loss in the event of a range of hardware or software failures. Dr. Chase opines that “[t]his core code to store, update, and recover disk group configurations safely is crucial to the value of the software in an enterprise setting.” ( Id.)

Under copyright law, even as to software code, “functional elements and elements taken from the public domain do not qualify for copyright protection.” Computer Assoc. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 714 (2d Cir.1992). Microsoft argues that the transaction macro was “required to maintain functionality with the Defined Interface, as required by the Agreement,” and as such, constitutes a functional, non-protected element of the allegedly infringed work. (Def.’s Mot. 26 (Dkt. No. 212 at 27).) However, Veritas’ expert Dr. Chase states that copying the transaction macro “was not necessary to maintain compatibility with the LDM on-disk structures.” (Chase Report ¶ 96 (Dkt. No. 296-3).) As a result, whether the transaction macro is a functional element is a disputed material fact.

Additionally, Microsoft argues that similar transaction macros have been in the public domain for decades, and that therefore the transaction macro at issue is not protected by copyright. (Def.’s Mot. 26 (Dkt. No. 212 at 27).) Veritas’ expert, however, has stated that the transaction macro was a proprietary feature that was developed by Veritas over many years. (Chase Report ¶ 103 (Dkt. No. 296-3 at 62).) Even Microsoft’s expert, Dr. Gary Nutt, recognizes that the transaction macro is crucial to the value of the product and stated that he was not aware of the publication of the macro:

Q: I am asking you whether you are aware of any publication by Veritas or anyone else of the unique implementation details associated with the transactions technology in LDM?

…

A: I would repeat that I am unaware of any source code being published, any of Veritas’ LDM source code appearing in publication.

(Nutt Dep. 51:3-13, 145:4-7 (Dkt. No. 296-4 at 15, 41).) It may be that similar transaction macros were common in computer science, as Microsoft contends, (Def.’s Mot. 26 (Dkt. No. 212 at 27)), but there is at least a genuine issue of material fact on this issue.

Finally, Microsoft’s argument that the alleged copying is de minimis is unpersuasive:

[E]ven a quantitatively small amount of copied material may be sufficiently important to the operation of plaintiff’s program to justify a finding of substantial similarity. For instance, a small portion of the structure or code of a program may nonetheless give it distinctive features or may make the program especially creative or desirable. In such a case, a finding of substantial similarity would be appropriate.

*9 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03(F)(5). In the instant case, as noted above, Veritas’ expert has opined that the transaction macro at issue makes the disputed technology more “desirable” because it is “robust against a range of adverse events that might occur” and “is crucial to the value of the software in an enterprise setting.” (Chase Report ¶ 102 (Dkt. No. 296-3 at 61).) Microsoft’s expert agrees with that characterization. (Nutt Dep. 145:5-7 (Dkt. No. 296-4 at 41). Accordingly, the Court will not dismiss the copyright claim on de minimis grounds.

In short. Just remember historia magistra vitae est. A short HOWTO for copyright holders in simple steps. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) - not good but it is just analog technology i.e. copies are not so good as originals. We will handle it. The Audio Home Recording Act (Pub. L. No. 102-563, 106 Stat. 4237) with its (17 U.S.C § 1002 (a)), (17 U.S.C. § 1002(c)) and (17 U.S.C. § 1003. Obligation to make royalty payments) - very good job! The lobby is better but what tha heck is that: 17 U.S.C. § 1008. Prohibition on certain infringement actions)?

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

Recording Industry Ass’ n of America, Inc. v. Diamond Multimedia Systems, 29 F. Supp.2d 624 (C.D. Cal. 1998), 180 F.3d 1072 (9th Cir. 1999) - very not good!

The Rio merely makes copies in order to render portable, or “space-shift,” those files that already reside on a user’s hard drive (…) Such copying is paradigmatic noncommercial personal use entirely consistent with the purposes of the AHRA

No Electronic Theft Act (Pub. L. No. 105-147, 111 Stat. 2678 (Dec. 16, 1997)) - yes, this is what we needed.

Joe Gratz wrote a post about a very interesting judgment in the case Lenz v. Universal Music Corp., No. 07-3783 (N.D. Cal. August 20, 2008), PDF file.

The purpose of Section 512(f) is to prevent the abuse of takedown notices. If copyright owners are immune from liability by virtue of ownership alone, then to a large extent Section 512(f) is superfluous. As Lenz points out, the unnecessary removal of non-infringing material causes significant injury to the public where time-sensitive or controversial subjects are involved and the counter-notification remedy does not sufficiently address these harms. A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute. Requiring owners to consider fair use will help “ensure[] that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will expand” without compromising “the movies, music, software and literary works that are the fruit of American creative genius.” Sen. Rep. No. 105-190 at 2 (1998).

I still wonder why such regulation were not included in analogical provisions of Polish or European Union 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

The state of Massachusetts has asked a federal judge for a temporary restraining order preventing three MIT students from giving a presentation on Sunday about hacking smartcards used in the Boston subway system.

You will read about the whole issue in article available at www.cnet.com website. the presentation is available at www-tech.mit.edu website, PDF file. As you may already know I fully support such actions. You may ask why? Because, for instance, I’d like to know as a potential consumer, that Apple had placed a hidden feature/switch in iPhone software that allows them to “secretly” delete installed applications. Read about that in the article available at www.itwire.com website.

Will the iPhone Dev Team now seek to delete this “kill switch” from future pwned versions of iPhone firmware, thus giving even more people a reason to pwn their iPhones?

Oh yes. Fu^H^HHack them all!

An interesting judgment in the case Blueport v. U.S., No. 2007-5140 (Fed. Cir. 2008). The United States Court of Appeals for the Federal Circuit upheld an appeal from the Court of Federal Claims, and acknowledged that the US government can not be held responsible for copyright or para-copyright infringement (some people call it also quasi-copyright). It was interpreted based on regulations provided in 28 U.S.C § 1498. One may be suprised by such approach, epsecially knowing that the US government strenuously lobbied for legal protection of TPMs in different international agreements. You may read about that at www.eff.org website. Sui generis hypocrisy? Read some comments available at www.arstechnica.com website and what Ethan Ackerman has to tell about it.

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.

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.

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.

I sometimes ask myself where the inspiration ends. The Polish version of my post also deals with some other less or more legal issues but I do not think that informing my English readers about Polish companies which use at least “strange TOS” of Twitter’s clones is relevant. I’m also not sure if its good to spare some money from the project’s budget that one could spend for a legal advice or some consultations with lawyers to answer the question if the TOS you provide are written in accordance with the law.

Not so long time ago I’ve published a post titled “Enforcing EULAs“. Meanwhile, looking through the net I found such release as Ahead.Nero.v8.3.2.1.Incl.Keymaker-EMBRACE and I’ve also noticed such a statement in the .nfo file.

EMBRACE, nor its members, can be held responsible
for anything they release. If it is illegal in your
country (as it is in most), you ARE NOT ALLOWED to
use it, under any circumstances. We are in the scene
for the fun, NOT to harm software developers. Good
software deserves your respect, go buy it!

Our software is released “as is”. We are in no way
to be blamed for anything that happens to your pc if
you use this. The author here by disclaims all the
warranties related to this software, expresed or
implid, including damage to hardware/software and/or
any date from the user of this product.

Your use of this product assumes that you have read
and accepted this disclaimer.

Do I need to mention that it is really easy to aviod any legal problems just by the use of free software alternatives? More details regarding this .nfo file are available at www.nfodb.com website. Some of my post that may touch similar issues are gathered under contract law category.

Skype has withdrawn the appeal against a judgment in the case LG München I, Az. 7 O 5245/07 - Welte/Skype, unpublished. Harald Welte has written more details.

The various arguments by Skype supporting their claim that the GPL is violating German anti-trust legislation as well as further claims aiming at the GPL being invalid or incompatible with German legislation were not further analyzed by the court.

The argument that GPL violates anti-trust law was already discussed before the US courts in the case Wallace v. IBM, 467 F.3d 1104 (7th Cir. 2006). Chief Judge Frank Hoover Easterbrook wrote explicitly:

The GPL and open-source software have nothing to fear from the antitrust laws.