The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Tag: IP

Fighting the last big thing’s battle

I know that a lot of people are not as interested in computers and computer law as I am, however this following post does not require a lot of background knowledge and I’m happy to announce that the only background information you need is that Google was started in January 1996 and it is currently the Year of Our Lord 2011.

A common complaint of security commentators is that the authorities are “fighting the last battle”, reacting to threats which have already happened, and this is why you can’t wear shoes and underwear on planes anymore. If you think about it it’s quite hard to do it any other way but just because you had chickenpox last year doesn’t mean you need to spend hundreds of billions of dollars preparing for it this year.

David Cameron recently made a speech that complained that our repressive IP regime would have prevented Google from starting up in the UK. Which is fine because we do have slightly anachronistic rules about making not-for-distribution copies due to the bundle of exclusive rights — the long standing issue on format-shifting being the most publicised one, the difficulty about copying software into RAM so you can run it is probably another.

So far the main criticism of the speech I’ve read is that it’s interesting that a Prime Minister who wants to relax IP law to make it easier for Google has the spouse of Google EU’s Head of Communications on his staff but that appearance of impropriety is his business. My concern is that this is absolutely fighting not just the last battle but battles the UK lost over 15 years ago. We didn’t invent Google and it doesn’t matter how easy and nice we make our legal system for search engines now, Google has already been invented somewhere else. It’s not useful to talk about reforming the law to make it possible to start Google in the UK in 2011 because we need something different.

I was once discussing internet innovation over lunch with some friends and we were talking about “the next big thing” and one of us pointed out the financial benefit of inventing the next big thing and the conversation paused for a minute as we realised that there was a business case to giving this a bit of thought. We never came up with anything. It’s not easy to come up with something new and big and David Cameron has his work cut out for him if he’s going to legislatively pre-empt it.

IP law in Britain does need some changes, for starters I’d like to be able to convert music on CDs to mp3 without doing something wrong, but the way to go about it is not to work out what would let us create US tech companies from the mid-90s. That boat has sailed a while ago and we should be talking about what is coming in the future.

H/T: The Guardian

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Edge (TM)

Words and symbols are funny things and some people attach particular significance to them. By some people I mean lawyers, obviously, and I also mean consumers. Trade marks are an important part of business and some times it’s amazing what has been trademarked – Intel has a common law mark in 5 musical notes and a famous, formerly British chocolate company has trademarked the colour purple. I don’t think I need to name the company because I told you their distinguishing trade mark – it’s obviously Cadbury’s. Although perhaps my sweet tooth is showing through there. You’re not allowed to wrap your chocolate bar in Cadbury purple and put it on shelves because consumers, fairly reasonably, would associate your product with the goodwill built up in the real Cadbury’s chocolate products and be confused into thinking that your product was a Cadbury’s product. Emotive writers would say it’s effectively using deception to steal their customers.

There are some exceptions in what you can trademark – there’s the Barcelona.com v Barcelona cases in which a city council tried to assert proprietary rights in the name of their geographical location. That didn’t fly and http://www.barcelona.com remains in private hands. But even very common things, like a sound or a colour or the first word you learn in school can be trademarked till the cows come home – just ask Apple Computer and Apple Music.

What about ’Edge’ ?

Therefore in principle there’s no reason why you couldn’t have a trade mark in the word ’edge’ and, in fact, quite a few people do. However one guy who almost certainly doesn’t is Tim Langdell who has suffered quite a substantial setback to his campaign of, a lot of commentators think, pretty ludicrous patent (technically also trade mark) trolling in the decision of Langdell v EA not to grant Langdell an interim injunction against EA’s rather successful video game ’Mirror’s Edge’.

The judge, unfortunately for Langdell, seems to have been persuaded by EA’s argument that this guy is kind of full of it. They showed a poorly Photoshopped cover of Edge magazine (presumably a trade mark of… Edge Magazine) which was used to show how Langdell had good will built up in the mark.

Pro tip: if your application for IP protection involves shoddily Photoshopped covers of magazines that belong to other people you should generally reconsider your business model.

Langdell’s angle

He seems to have got by thus far by simply telling people who use the word edge in a product that he has something similar and it’s always been easier and cheaper to just buy him off. The something similar can be laughably poor, and often effectively taken from someone else and retrospectively licensed to him, but it creates enough doubt in the generally very small companies that he targets that the only thing to do is avoid a crippling intellectual property court battle and settle. It seems to have worked out really well for him.

The issues involved in working out if a trade mark has been infringed are complicated. You need to work out pretty exact figures for loss, confusion, competition, scale, distribution and so on. The general independent (indie) games producer just can’t afford to fund a legal battle as well as make a game that will sell and make the money spent on it back for the creator and it is a crippling thing. There is a company called Ad-droid which is being sued by Lucasarts for infringing on the Droid trademark they have from the Star Wars movies – ’These aren’t the droids you’re looking for’ etc – and that’s just hanging over the company because they don’t know what will happen and if they can afford it. You need to be a pretty large company just to be able to defend a full intellectual property case.

Fortunately Electronic Arts (EA) is one of the biggest games companies in history, certainly the biggest video games company, and they looked at this request to stop selling a multi-million dollar game and pay damages to him and decided they wouldn’t do that. Instead they took him straight to court where they’ve won a major (though not decisive) victory.

EA is also one of the most hated video games companies in history, so seeing them throw around their considerable corporate might in a David versus Goliath legal struggle and not appear to be quasi-monopolistic bullies must be a wonderful change for them. Please keep it up EA, this is really good of you.

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ACS Lulz

ACS Law is one of the controversial law firms which mass mails file sharing cease, desist and pay letters to tens of thousands of people at a time. They often do it with seriously limited information and end up getting a lot, a lot, of false positives. One of the senior employees for the firm put out a tender looking for a program to be written which could sit on bit torrent swarms and record the IP (Internet Protocol) addresses of the people involved – he’s thought to have only paid about £250-£750 for it. They may use that software (they did pay good money for it after all) or they may use different software, no one actually knows how they do it, but they end up with a long list of IP addresses. They then send the screeds of IPs to ISPs (Internet Service Provider) and ask for real world identities of the computers identified in the swarm. They send out letters to the people the ISP identifies asking for money – they average about £900 a letter.

Shockingly, the ISPs generally comply with this. Only two British ISPs – Virgin and TalkTalk – actually insist on you having a court order before they give out personal information. That sounds like a data loss incident in the making.

The IP tracing method is unable to identify a particular computer or particular person. It’s even iffy about how well it can assess the particular time it took place. It certainly cannot tell if you have the file at present. The most common example of why you might be falsely accused is simply because your ISP gave away your IP address to someone else. It’s not your address to keep (unless you make a specific arrangement to keep it) and if you’re not using it someone else could. There are stories of university printers in the US (the little grey box that paper with words on comes out of kind of printer) being served with IP (Intellectual Property this time) infringement litigation because an IP address was identified as being involved with file sharing but now that IP address has been given to a printer.

The long and the short of it is the printer didn’t do it.

The other common way that the IP method fails miserably is if someone is using your wireless connection. In this case it is your IP from your ISP that is downloading the file but you have absolutely nothing to do with it. The problem of proving (even just to the balance of probabilities) that someone you don’t know exists is using your wifi without your knowledge to download files without your permission is a pretty big ask, especially when the cost of defending a copyright infringement action is around £10,000. “A big boy did it and ran away” didn’t work in school and you certainly wouldn’t bet ten grand on it.

Despite the methodical flaws in the system the firm continues sending letters out regardless (is this a case of happily promoting bogus methods a la Singh?). Some of the examples of false positives are both horrifying and darkly funny – the elderly, computerless couple accused of downloading a gay porn movie called “Army Fucking”, for example.

So, they’re a dodgy, greedy company and they have been for ages. Why am I writing about them today?

Well, they’ve been Anon’d. Hard.

Anonymous (big A) is an anonymous (small a) group of internet users who basically troll – that is, annoy – certain people who either deserve it or are funny in some way. They have some horrible moments (there was the time that they decided that a teenager had committed suicide because he had lost his iPod and decided to prank call his grieving parents to tell them so) and some quite impressive moments – Scientology, which for the purposes of French law and South Park is a fairly dangerous way of getting money out of people on the basis of religion, no longer has any web presence worth the name because Anonymous systematically destroyed it.

They have pursued a strategy of distributed denial of service (DDoS) attacks on the websites of groups that fit the deserve it or funny in some way criterion and their current target is www.acs-law.co.uk. Feel free to click that link, if you’re reading this anytime close to when I wrote this it’s not going to work.

A denial of service (DoS) attack simply bombards an internet service with so many requests that it stops working. Sending a fax machine hundreds of 100% black pages until it runs out of paper and toner is a denial of service attack. A distributed denial of service attack is simply getting lots of people to do it so that it is more practicable to do – so rather than you sending the fax machine hundreds of black pages at your expense you get hundreds of people to send one black page each to the machine, splitting the effort but achieving the same result.

That means that the site was taken offline, to protect other people who have sites on the same server, and it then became a rush for ACS Law to get the site back up in a form that let them do business (they are a predominately mail and internet based firm at this point – they’re yet to go to court over one of these file sharing allegations) but in a way that doesn’t get immediately taken back down again.

They did it horribly wrong.

They somehow managed to post up, instead of their company website, a back up of their entire corporate network. Including, notably, their email database. This was rapidly downloaded and is now on bit torrent, just for some extra irony on top. I’m not sure about the specific legality of the files – I suspect that posting your email on the home page of your website means that you’ve effectively waived confidentiality and privilege in terms of the information contained in them but you would need a judge to say for sure.

I suppose they do still own the copyright in them though.

The emails are pretty damaging stuff. They basically show the inner lives of people who basically seem to run their whole lives from their company email (he has fights with his ex-wife in some of the messages). They show that companies that ACS actually works for are uneasy about the sort of coverage the firm is getting. They show that ACS law made warnings towards suing Which? for libel over their coverage of old grannies being sent impossible file sharing letters.

The torrent is about 400MB and has to be one of the top results if you search for ACS law at this point. I’m not really going to read through it all but the extracts are pretty gripping stuff. Torrentfreak is going crazy over it.

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Student Law Review

I dropped by my law school this week on the way to the library and picked up a copy of the current student law magazines while I was there.

The Student Law Review, published by Routledge Cavendish is a publication bordering on the “terrifyingly polished” and I find it to be a very interesting read that I try to pick up whenever I can.

I’ve done a quick and rough digest of the contents of this edition, and it’s a very, very long post so I’ve added it after the break. I will be back later to fact check but right now I’m just impressed at myself for getting this typed up. These are in no way the whole articles, or indeed perfect outlines of the articles themselves, I was more interested in putting out what the publication covers instead of violating the copyright on the articles themselves:

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