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.

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.

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.

I do not want to brag about myself but I wrote once in the post titled “The Law” that I want to write some article. You may wonder what has happened after almost two years since I’ve issued such statement?

Legal context: This article deals with most important legal questions regarding graffiti. It seeks to identify issues that may arise in copyright and trade mark law. The analysis is based on selected international, Polish, UK, US and European Union regulations.

Key points and practical significance: The social phenomenon known as graffiti is not legally indifferent. However, there are few articles dealing with those issues relevant in IP law. The author presents a short overview of the contemporary graffiti movement. He then presents important IP legal problems that may arise as regards to graffiti activity and briefly analyzes those issues relevant to domestic and international legal regimes.

Key Words: Most graffiti is illegal, but that does not mean that interesting IP questions do not arise in relation to this cultural phenomenon. Following a short overview of the contemporary graffiti movement, the author article seeks to analyse some of the basic questions that arise concerning copyright protection and industrial property law. The author calls for a more focused analysis in the future of this controversial problem.

T. Rychlicki, Legal questions about illegal art, Journal of Intellectual Property Law & Practice 2008 3(6):393-401; doi:10.1093/jiplp/jpn058.

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. :)

Cultural industries in Europe on cultural industries in Europe, (A6-0063/2008). Report: Guy Bono (PES, FR). Report adopted by 586 votes in favour to 36 against, with amendments.

Calls on the Commission and the Member States to recognise that the Internet is a vast platform for cultural expression, access to knowledge, and democratic participation in European creativity, bringing generations together through the information society; calls on the Commission and the Member States, therefore, to avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access.

More details in a post available at www.openrightsgroup.org website. As for some additionals thoughts I’d like to recommend you www.europarl.europa.eu website.

Almost 15,000 lobbyists in Brussels may face new working practices after the Parliament’s Constitutional Affairs Committee backed a report which calls on them to disclose their fees and have their names on a mandatory public list. The author of the report - Finnish MEP Alexander Stubb (EPP-ED) - praised lobbyists saying “policy making would be very poor without their contribution”. The full parliament will vote on the report on 8 May. This focus looks at the issues raised by the Stubb report.

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.

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.

Normally you would expect malware writers to be arrested for breaking into computers with their code or damaging data, but in this case he is accused of breaching copyright because he used cartoon graphics without permission in his Trojan horse. Because this is the first arrest in Japan of a virus writer it’s likely to generate a lot of attention and there will be many people watching to see the outcome

said Graham Cluley from Sophos. More details about this issue are available at www.sophos.com.

I am really suprised that US courts are interpreting the Miranda rule so late when it comes to “computer passwords”. See: In re Grand Jury Subpoena, 2007 U.S. Dist. LEXIS 87951, 2007 WL 4246473 (D. Vt. 2007). I recommend you to read European Court of Human Rights judgment in the case Funke v. France, [1993] ECHR 7 (25 February 1993).

Interpol’s investigators were able to recover an image of a man suspected of sexually exploiting children. He put his images in the Internet with his face altered by the use of a filter included in popular graphic software (for instance such as “twirl tool” in Adobe Photoshop®). Police and computers experts have used a reverse method to uncover suspect’s identity. Details of this case are available at www.slashdot.org website. You may find there another comments about this illusory privacy method.

The Internet Crime Complaint Center has published an annual report (PDF file) concerning crimes committed with the use of computers networks.

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 the case United States v. Heckenkamp, 2007 U.S. App. LEXIS 7806 (9th Cir. 2007), PDF file format, 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 regulations included in the Act on June 6, 1997, Penal Code (Dziennik Ustaw No 88, pos. 553 on August 2, 1997, with later changes):

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 www.findlaw.com website.