Intellectual Property Law Internet Law IT Law Computer Law

You probably recall one of my previous posts titled “Give me this judgment!“. Well, I got it. After sending fax message at 11:57 am (CET) I received 12 pages document containing the judgment of the Supreme Court of 11 March 2008 (act signature II, CSK 539/07) at 12:31. It was sent directly to my mailbox. Of course I decided to publish this judgment at www.orzecznictwo.net website. It is in Polish language but I promise to write a short comment note for my English readers soon.

In the US the No Electronic Theft Act (Pub. L. No. 105-147, 111 Stat. 2678 (Dec. 16, 1997)) introduced changes into 17 U.S.C § 101. Definitions.

The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.

In Poland, we have judgment of the Appellate Court in Warsaw of 12 December 1995, act signature I ACr 590/95, published in OSA 1997, No 3, pos. 16, p. 32, saying:

Benefits are generally a part of the net profit achieved as a result of copyright infringement. The benefits are also the savings on expenses for copyright fees, if the copyright infringement was based on the use of work without a proper remuneration.

Interesting approaches in two different jurisdictions. The Republic of Poland is not common law country.

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.

In the era of the Internet and processing of documents in digital form, Tomasz Rychlicki must go to the Supreme Court to buy stamps for the sum of 12 Polish złoty. He has to stick these stamps on the sheet of paper on which he also has to include - write down - the signature of the judgment of the Supreme Court of 11 March 2008 (act signature II, CSK 539/07), which he knows about only from information made available in the Bulletin No. 7/08 of 8 August 2008, PDF file, that in laconic way only says that:

Username (nickname) which is used by a person in Internet services is a subject to legal protection on the same grounds as the protection of personal name, pseudonym or company.

Tomasz Rychlicki has to write his e-mail address on the same sheet of paper together with judgement’s act signature and stuck and cross out (sic) stamps. When he sends this sheet of paper by fax, Tomasz Rychlicki receives the ruling via e-mail sent to the specified e-mail address. Nice ladies are working in the Supreme Court, who are really willing to help, but some procedures are set out by ******** (autocensorship). Piotr Waglowski has also wrote some comments about this judgement. After our brief conversation I was “elected” to get the text of this judgment.

There is an article available at www.valleywag.com website commenting on funny terms from TOU/TOS licenses. There is also a post regarding recent action of Carl Malamud at www.slashdot.org website. Go Carl!

California claims copyright to its laws, and warns people not to share them. And that’s not sitting right with Internet gadfly, and open-access hero, Carl Malamud. He has spent the last couple months scanning tens of thousands of pages containing city, county and state laws — think building codes, banking laws, etc. Malamud wants California to sue him, which is almost a given if the state wants to continue claiming copyright. He thinks a federal court will rule in his favor: It is illegal to copyright the law since people are required to know it. Malamud helped force the SEC to put corporate filings online in 1994, and did the same with the patent office. He got the Smithsonian to loosen its claim of copyright, CSPAN to stop forbidding people from sharing its videos, and most recently Oregon to quit claiming copyright on state laws.

I’d like to remind you of some of my post I’ve “commited” regarding licenses’ issues. Among other things are posts such as “Oh, those Internet’s contracts” and “TOS not so absolute“.

FACIL, a non-profit association, which promotes the collective appropriation of Free Software, contests the Quebec government purchasing methods for software used within public administrations. FACIL has filed a motion before the Quebec Superior Court in order to bring an end to these methods which the association believes not to be in the best interest of the Quebec government, but more importantly, not in accordance with the regulation for supply contracts, construction contracts and service contracts of government departments and public bodies

More details at www.facil.qc.ca website and in the article available at www.cbc.ca website.

There is a PC game called Beijing 2008. It looks like the Polish anthem is the only one to be badly recorded and by “badly” I do not mean the sound quality. There is a reaction in the net of course. You may find an article availabe at www.wp.pl website which is devoted to this issue. But I was more intrigued by such a statement.

Authors’ right to the anthem are the property of the whole nation so there is a lack of obligation to recieve a consent to use it. But it does not mean it may be any use - answered Iwona Radziszewska -spokesperson of the Ministry of Culture and National Heritage of the Republic of Poland.

To ensure that only the companies that pay millions of dollars to be official Olympic sponsors enjoy the benefits of exposure in Olympic venues, organizers have covered the trademarks of nonsponsors with thousands of little swatches of tape.

More details in the article available at www.wsj.com website. I know that it is impossible to cover all things or issues by tapes to make them look good and nice and to aviod public comments. Frauds done during the opening ceremony of the Olympic Games are the example. I’d like to say that China is a great country with very interesting history and culture, but Chinese government and what it had done since the beginning of the communism is totally different story.

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.

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.

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?

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.

Hackers from the Chaos Computer Club published fingerprint of Wolfgang Schauble, Germany’s interior minister not so long time ago. Check www.wired.com. Meanwhile Privacy International and British NO2ID organization offer a reward for a person who will be the first one to submit a fingerprint of the Prime_Minister of the United Kingdom and the Secretary of State for the Home Department. Details with proper posters are available at www.privacyinternational.org website. From the other hand. Article 29, European Union’s Working Party, has published a report, PDF file, regarding personal data protection and search engines.

There was plenty of news regarding 2008 Olympics in Beijing and there will be much more soon. Meanwhile there are such websites as www.playfair2008.org and www.cleanclothes.org present in the net. The list of 2008 Olympics’ sponsors is available at www.beijing2008.cn website. I wrote a post titled I am sorry China about problems with Chinese trade marks sometime ago and there is a perfect propaganda article available at www.xinhuanet.com website about “problems” of foreign brands in Tibet.

“Internet Censorship: A Comparative Study” is available at www.globalintegrity.org website. I also suggest you to visit the website of Wikileaks project.