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IP address is personal data says Polish court

February 5th, 2010, Tomasz Rychlicki

According to lawyers representing the singer Maryla Rodowicz, on the forum of one of the Polish portal websites appeared entries with the content which allegedly violated her personal rights (interests). The lawyers requested the owner to reveal IP addresses of users who posted these entries. The administrator of the portal website deleted the disputed entries but did not reveal any of the IP addresses. Lawyers filed a request to the Inspector General for Personal Data Protection (GIODO), who ordered the portal to disclose IPs on the grounds that these numbers are personal data. The owner of the portal again refused. The case went to the Voivodeship Administrative Court (VAC) in Warsaw, which in a judgment of 3 February 2010, case file II SA/Wa 1598/09 upheld the decision of the GIODO. The company who owns the portal may file a cassation to the Supreme Administrative Court (SAC). The VAC judgment provides the interpretation that IP address is a personal data, in accordance with the statutory definition included in article 6 of the Polish Act of 29 August 1997 on the Protection of Personal Data – PPD – (in Polish: Ustawa o ochronie danych osobowych), Journal of Laws (Dziennik Ustaw) of October 29, 1997, No. 133, item 883, unified text published in Journal of Laws (Dziennik Ustaw) of July 6, 2002, No. 101, item 926, with later amendments.

Article 6
1. Within the meaning of the Act personal data shall mean any information relating to an identified or identifiable natural person.
2. An identifiable person is the one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity.
3. A piece of information shall not be regarded as identifying where the identification requires an unreasonable amount of time, cost and manpower.

This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

The U.S. courts and judges have quite different views on this issue. Read for example Johnson v. Microsoft Corp., 2009 WL 1794400 (W.D. Wash. June 23, 2009).

See also my posts entitled “Polish regulations on personal data protection” and “Polish case law on personal data protection“.

E-signatures in Poland

January 29th, 2010, Tomasz Rychlicki

Current Polish legislation on e-signature include the Act of 18 September 2001 on Electronic Signature – ESA – (in Polish: ustawa o podpisie elektronicznym) Journal of Laws (Dziennik Ustaw) of 15 November 2001, No 130, item 1450, with later amendments. The ESA introduced in article 3 two types of e-signature: “electronic signature”, which means data in electronic form which, together with other data, either attached thereto or logically associated therewith, are capable of identifying the signatory and the so-called “secure electronic signature”, which means electronic signature which is uniquely assigned to the signatory, is made using secure signature-creation device and signature-creation data that the signatory can maintain under his sole control, is related to the data to which it has been attached in such a manner that any subsequent change of the data is recognizable.

According to article 5 of the ESA, the data in electronic form bearing a secure electronic signature verified by a valid qualified certificate shall be legally recognized as equivalent to documents bearing handwritten signatures. A secure electronic signature verified by a valid qualified certificate shall ensure the integrity of the data bearing the signature and unambiguous indication of the qualified certificate by assuring that any subsequent changes of the data and any subsequent changes of the indication of the certificate used to verify the signature are recognizable.

Recently, the Polish Ministry of Economy proposed amendments to the ESA. The draft provides new types of e-signatures that are consistent with the Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signature.

The draft provides 4 types of e-signature: normal, advanced, personal and certified. The normal one will be the same features as present “electronic signature” as defined in article 3 of the ASA and will primarily serve as a declaration of identity.

The advanced e-signature will have to meet the additional requirements for certification of the person using it. It will certify the data integrity and allow you to establish the identity of the signatory to both individuals and legal persons, such as when submitting electronic invoices.

The data in electronic form signed by a qualified (secure) electronic signature will have specific legal effects – the same as a handwritten signature for the data recorded on paper. Such data will be admissible as evidence in legal proceedings. The signature will be used to sign statements of knowledge and will.

Published after some dubts

November 19th, 2009, Tomasz Rychlicki

The WIPO Magazine 6/2009 published a really short note that I wrote toghether with Adam Zieliński. It is entitled “Is Sampling Always Copyright Infringement?“.

Say it loud and clear!

November 16th, 2009, Tomasz Rychlicki

Downloading MP3s (or movies, pictures, press articles) is not illegal under the Polish law. According to article 23 of the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631, with later amendments.

Section 3
Lawful Use of Protected Works
Art. 23.-1. It shall be permissible, without the consent of the creator, to make use free of charge, of a work that has already been disclosed. However, this provision shall not authorize the construction of a building based on an architectural work or a work of urban architecture made by another person.
2. Personal use shall extend to use within a circle of persons who are personally related, in particular by blood or marriage, or who entertain social relations.

That was also explicitly said in Rzeczpospolita’s article entitled (this is my loosely translation of course) “Downloading MP3’s files is not a crime“.

No one in Poland will go to prison for downloading music or movies from the Internet. But you can get there for file sharing.

Computer software is protected on different rules. There are proper provisions included in the Criminal Code – CRC – (in Polish: Kodeks Karny) of 6 June 1997, Journal of Laws (Dziennik Ustaw) No 88, item 553, with later amendments.

Chapter XXXV
Offences against Property
Article 278. § 1. Whoever, with the purpose of appropriating, wilfully takes someone else’s movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

§ 2. The same punishment shall be imposed on anyone, who without the permission of the authorised person, acquires someone else’s computer software, with the purpose of gaining material benefit.

§ 3. In the event that the act is of a lesser significance, the perpetrator shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.

§ 4. If the theft has been committed to the detriment of a next of kin, the prosecution shall occur upon a motion from the injured person.

§ 5. The provisions of § 1, 3 and 4 shall be applied accordingly to stealing energy or a card enabling the collection of money from a bank automatic cash dispenser [automatic teller machine]

There is also Chapter 14 entitled Criminal Liability in the Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with later amendments.

See also my previous post entitled ““Pirate” politician“.

Lawmakers…

November 16th, 2009, Tomasz Rychlicki

In a recent attempt to fight against e-gambling, the Polish Ministry of Finance proposed a legislative amendments to the Act on Telecommunication Law (ATL) that introduce a “Registry of prohibited websites and services” – article 179a of the ATL. The publicly available registry will be operated by the President of the Office of Electronic Communications. According to the proposed amendments if someone would like to have its website removed from the registry – it has to provide a statement with the “evidence of a legal title to its website or a declaration about provided services” – article 179a. 5. Sigh…

Categories: Polish law | computer crime | computer law | digital economy | telecommunication law.

Dumb lawmakers, please think what you do…

November 9th, 2009, Tomasz Rychlicki

Maybe the subject of this post is a little malicious but try to think about democracyless legislative body that under the influence of a strong lobby, wants to introduce legislation of “3 strikes” type, yet there is software instaled one someone’s computer that automatically downloads child pornography/copyrighted content? What about the fundamental right to defend/the right to fair trial?

The Associated Press tells the story of Michael Fiola, a former Massachusetts government employee who was arrested in 2007 after child porn was found on his state-issued laptop computer. He was eventually cleared of all charges after some digging by the defense found that the laptop was infected with malware that was ‘programmed to visit as many as 40 child porn sites per minute — an inhuman feat.

More details available at slashdot.org.

The art of reverse engineering

October 27th, 2009, Tomasz Rychlicki

Universal.Safedisc.and.SafeCast.Loader-RELOADED consist of a nfo file which has the following part:

Release note:
~~~~~~~~~~~~~
Since the Macrovision Corp. turned into Rovi Corporation and discontinued
development of SafeDisc/SafeCast DRM’s, we have decided to make this old
tool public (after some adjustments).

This tool bypasses checks like cd/dvd validation, trial, online-activation
(for beta games), execution-count and of course silent cd/dvd check (so you
should be able to play The Sims 2 as well). Read the included ReadMe.txt for
more details and on how to use this.

Please note that we will take no responsibility for this loader. We will not
provide any future fixes or support. We are aware the Source archive is
password protected. Do not ask us for the password.

Antivirus software that blocks code injection will block this loader, so make
sure to greenlist the included exe and dll or disable your antivirus software.

TPMs, DRMs. Is it already the past?

Categories: computer crime | computer law | copyright law | digital economy.

Is it invention or computer software?

October 13th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court (VAC) in Warsaw in a judgment of 10 June 2009, case file VI SA/Wa 2566/08 held that:

it is up to the Patent Office (PPO) to reconsider the matter in its entirety and refer to the statements and allegations contained in the request for the reconsideration the case taking into account the above guidance and administrative procedures by which the Office is bound.

Looks like no big deal, right? But if you could read the whole judgment, which unfortunately is not available in English, you would understand that the Polish Patent Office will have to issue an opinion, and will have to justify and explain it appropriately, on the subject what is an invention and what is a computer program and why the PPO does not grant patents to so-called “digital” solutions.

In this context, I look forward to the EPO decision in G 3/08 case and to the SCOTUS’ judgment In re Bilski, 545 F.3d 943, 88 U.S.P.Q.2d 1385 (Fed. Cir. 2008).

Global patent system?

September 4th, 2009, Tomasz Rychlicki

In my humble opinion, the idea of Microsoft’s lawyers is a mistake, or at least and very gently saying, slight mental aberration. My statement is as much insolent as it is to impose a vision of the law by a single corporation. But I have found more funny story. There is an article entitled “Spór o patenty, czyli Microsoft vs open-source“, in English “Dispute on patents or Microsoft vs open-source”. The author of this short piece has insightful findings regarding R. Stallman’s connections with GNU and FSF.

The GNU project founder Richard Stallman warns (…). In an article published on the Free Software Foundation website (nota bene, whose founder is also Stallman).

Categories: US law | copyright law | digital economy | open standards | patent law.

It is out now!

July 14th, 2009, Tomasz Rychlicki

My dear readers. All P.T. readers. I would like to draw your attention to the International Free and Open Source Software Law Review. It is an absolutely free publication on legal aspects of free and open source software. The first issue is available for download (both HTML or PDF versions) directly from its website. There, you’ll find couple of interesting articles. In particular, I recommend Shane Coughlan’s and Andrew Martin Katz’s article titled “Introducing the Risk Grid“. I will also immodestly mention that from the very beginning I was involved in the creation of the IFOSS L. Rev. and I am currently a member of the editorial board. Of course, I invite everyone to write for his periodical. Please do not hesitate to submit your papers.

There is another “Polish theme” in the IFOSS L. Rev. Great logotype and covers for the journal were created pro bono by my good friend Tomasz Politański.