Tech law update 3 September 2010

Throwing the ‘book

Facebook is attempting to assert ownership over use of the word “book” in domain names, by filing a lawsuit in the US against unrelated site It has also been reported that Facebook is attempting to claim the word “face” as well. The “book” complaint alleges:

Misappropriating the distinctive book portion of Facebook’s trademark, defendant has created its own competing online networking community in a blatant attempt to become a Facebook for teachers.

It is not uncommon for trade mark owners to take action to stop “similar” names being used by another party, even where the other is innocently using them in an unrelated manner. A recent local example being designer Trelise Cooper’s unsuccessful attempt to stop another New Zealand designer from registering her own actual name, “Tamsin Cooper” as a trade mark. Facebook will not succeed in gaining a monopoly over either “face” or “book”, but may be seeking to force a lesser-resourced start-up into a settlement. Teachbook has said it will fight the suit.

ISP or not to ISP

Computerworld reports on ongoing concern over the very broad definition of “ISP” in the Copyright Act (see my post here). Submitters have suggested that the definition be modified to only apply to organisations that allocate IP addresses. While that would be a significant improvement, it would still leaves some organisation as unintended or unwilling ISPs. For example the University of Auckland has submitted:

The University currently controls a range of 65,534 unique IP addresses which it allocates to access points in the University and to halls of residence… The University thus has serious concerns about its status and the definitions of an ISP as drafted in the Bill. It will be apparent from the information provided that the University has essentially all the characteristics of an ISP and will be the entity that is contacted if illegal file sharing is alleged.

Government Open Access and Licensing

The Minister of State Services recently announced the release of the NZ Government Open Access and Licensing Framework – a series of Govt-approved licensing models that advocate the use of liberal Creative Commons licenses. The policy is available here. It applies to all public service departments and Crown entities, except (somewhat curiously) for tertiary institutes.

We called out for another drink, the waiter brought a cease-and-desist

Can you copyright a cocktail? The Atlantic reports on a Manhattan bar that may yet find out. For the record, a recipe can be copyright, but for heaven’s sake can’t they just settle it over a Long Island Iced Tea?

ISP filtering

The Department of Internal Affairs’ (DIA) internet filter has gone live. The system is aimed at blocking illegal images of children. While this is a voluntary scheme (unlike Australia‘s scheme), the experience in the UK has been that there will be pressure on ISP’s (including direct Ministerial threats) to join the “voluntary” scheme, lest they become a known haven for those seeking illegal content. Now, all UK ISP’s subscribe to the Cleanfeed filter.

In New Zealand, any move to make the filter mandatory would require legislation. While many opponents of the filter would likely oppose legislation, it would at least have the effect of defining the parameters of the filter and its regulation. The legislation would need to comply with the Bill of Rights Act (unsatisfactory though that law may be), or be passed with a statement expressly acknowledging where it breaches that Act. This would clear up concerns (or at least bring them into the open) that the filter may one day start to gradually be used for other purposes, such as blocking breaches of name suppression. It would make the filtering accountable to Parliament and the Courts. Also, the enabling legislation does not need to create make filtering mandatory – it could ensure that ISP’s remain free to choose whether or not to sign-up.

As long as the scheme remains voluntary and unregulated, though, no legislation is needed. While the objective is admirable (putting aside major questions over effectiveness), concerns include:

  • What information is being stored in the system, who has access to that information, and is it in compliance with the Privacy Act 1993?
  • What oversight is there on the content being filtered?
  • Is there a risk that the system could be extended to include material covered by name suppression orders?
  • Is pressure being brought to bear on ISPs to join the system?

For now, some ISP’s have expressed strong concerns about the filter which, as long as it remains voluntary, makes it unlikely that full sign-up will be achieved in the short term.

Section 92A: definite signs of improvement

The proposed reformulation of s 92A of the Copyright Act, which gives the Copyright Tribunal the responsibility for deciding if users should have their internet access terminated, is a much improved proposal over the original. The key problem with the original, poorly drafted and poorly thought-out proposal was that it put the responsibility of whether or not to terminate, on the ISP. This would have been unfair to every ISP caught in the middle of a dispute between their customer and any number of third parties (who, in the case of international copyright holders, would most likely be legally represented).

The new proposal removes that responsibility from ISPs. It gives the responsibility to the Copyright Tribunal, which has (or will have) the necessary expertise and resources to deal with complaints. As a state agency, it is bound by the Bill of Rights Act 1990, which guarantees natural justice (s 27(1)). Its decisions are subject to judicial review (s 27(2)). The proposal to allow the Tribunal impose fines (quite different from “damages” that a Court could award) means that a person who is fined (even for a modest amount) could not be sued in Court for the same infringement (in addition the proposal is that the Tribunal have exclusive jurisdiction of s 92A matters) . Tribunal members are, to some extent at least, accountable to the democratically elected Government. It has statutory reporting obligations.

This not only solves the primary complaint about the original proposal, it should (subject to some changes – see below) also provide strong procedural safeguards for the web-surfing public.

So why is there still fuss about the new proposal?

A central complaint of the original proposal – the unfair burden it put on ISPs, and the real potential for “guilt by accusation” that followed – has now been resolved. The focus of critics has now shifted to the purportedly “disproportionate punishment” of terminating an internet account and the assault on “human rights” that entails.

The Creative Freedom Foundation’s position remains that termination is “disproportionate punishment“. Similarly, Keith Davidson of InternetNZ is reported as saying of the new proposal: “the termination of a household or business internet account is simply out of proportion to the alleged offence”.

How can termination be “out of proportion” to an offence that hasn’t happened yet? How can termination be “out of proportion” given the 3 stage, 3 month process, the first step of which requires notification and a right of reply and the right to mediation? How can termination be “out of proportion” when an ISP would be within its contractual rights to terminate a user’s account without notice for any number of reasons, which may or may not be less serious than copyright infringement?

The “human rights” line of argument also misses the point. Internet access through a particular ISP is not a human right. Every ISP in New Zealand provides their service subject to terms and conditions, including prohibiting copyright infringement. If you breach those terms and conditions (or your ISP believes you have), they may terminate your account. ISPs can impose whatever (lawful) terms and conditions they like. Most ISPs even reserve the right to change those terms and conditions at any time without your knowledge.

The revised proposal does not stop a terminated user from immediately signing up with another ISP. In fact it does not even stop a terminated user from opening a new account with the same ISP. It does not ban a person from the internet. The human rights argument falls flat.

Don’t get me wrong – there is a global war being fought by the major IP rights holders over the future of intellectual property and human rights are certainly one of the many factors at stake. The issue of software patents in this country (which should be banned) is one small battlefront in that war.

The difficulty, as I see it, is that some critics of s 92A (and critics of copyright/IP in general) only see the issue in terms of the big, wealthy, multinational companies suing mothers of young children for millions of dollars for sharing US$24 worth of music. Through my work as a lawyer, I have recently witnessed a situation where a semi-retired New Zealand man had spent many years painstakingly creating certain written works. For the past couple of years he had managed to make a reasonable amount of money selling these works to hobbyists in his particular field – not enough to live on, but enough to pay for his hobby and help him in his pending retirement. All that changed when one particular individual – lets call him Mr X – publicly (and illegally) republished all of those works online for free. Mr X admitted doing so, but refused to take the works down, claiming that in his view authors didn’t deserve copyright in these sorts of works, and they should be freely shared with everyone. Obviously, this was devastating to the New Zealand man. While in this particular situation Mr X’s website was hosted overseas, a s 92A-style notice-and-takedown procedure would have provided a reasonably efficient first-step remedy against this blatant theft and destruction of one man’s years of hard work and creative effort by someone ideologically opposed to the idea of copyright.

There is no doubt that heavy-handed, excessive enforcement has backfired and been a PR disaster for major rights holders. It is precisely that “overkill” that the ISP account termination approach seeks to alleviate, and that the revised s 92A proposal provides a reasonable balance against. Whether this is the “thin end of the wedge” remains to be seen – no doubt for some it is the first step in a larger strategy – but misrepresenting the current situation as a human rights issue is (at best) jumping at shadows.

The new proposal is obviously not yet complete. Whether or not the final proposal does turn out to be “fair, efficient and workable” as Policy Proposal Document promises remains to be seen. Some specific areas that need to be addressed are:

  1. Protection against the making of frivolous, vexatious or bad-faith (e.g. abuse of process) complaints (this sort of protection is a good way of dealing with the false complaint issue).
  2. Onus and standards of proof (the Policy Proposal Document talks about the balance of probability – which is usual for civil actions – but more detail on the types of permissible evidence will be important).
  3. Clarification over who a “subscriber” is in a shared-access environment.
  4. Requiring the Tribunal to take into account the rights of other users of the particular internet account in question.
  5. Clarification over the status of non-ISP organisations caught by the Copyright Act’s very wide definition of “ISP” under the new proposal.
  6. Clarification of jurisdiction (territorial limits, maximum fines, matters that may be taken into account, etc).