Lily unites musicians against file-sharing

Rory Cellan-Jones reports that Lily Allen has single handedly turned around UK music artists' opposition to 3 strikes.

Apparently the artists are now in favour of 3 strikes where the third strike is a massive restriction of the user's bandwidth rather than a suspension of access to the Net.

U.S.-EU IPR Enforcement Working Group

From TACD:

"A meeting of the EU-U.S. IPR Enforcement Working Group  took place today September 23, 2009 in Washington,DC.  The TransAtlantic Consumer Dialogue (TACD) and the TransAtlantic Business Dialogue were both invited to the event entitled ” IPR Enforcement Working Group – Meeting with Private Sector.”  Below are a few highlights from the meeting, comprehensive notes of the meeting will follow.
The meeting was well-attended with about eighty participants including industry representatives, government officials, and just four non-profit representatives.  Susan Wilson (US Dept. of Commerce) and Luc Devigne (EU Commission) were the co-chairs of the meeting. In addition, Stan McCoy and Jennifer Groves of USTR and other EU officials also presented their viewpoints.  The U.S. and EU government representatives reported on various IPR enforcement related activities and answered questions.
Susan Wilson in her introduction stated the IPR Enforcement Working Group’s objectives were:
- To promote enforcement
- To fight piracy and counterfeits
- To promote public & private partnerships on piracy and counterfeits
A copy of the meeting agenda is here."

Human Provenance pilot project

From Terri Dowty at ARCH:

"The UK Border Agency has just announced a new initiative – you may have seen a bit about it in the Observer this week.
It’s called the ‘Human Provenance pilot project’ and the ’stakeholder letter’ sent out a couple of weeks ago by UKBA explains:

Human Provenance testing analyses the isotope configuration as stored in a person’s body. All samples will be provided voluntarily. The analysis itself involves the testing of hair and nail samples to allow us to be able to match results using internationally recognised isotope comparison methods to help identify a person’s true country of origin. We will also be testing mitochondrial and Y chromosome DNA, which are collected by use of a mouth swab and matching results using similar comparative methods. These samples will not provide specific information about a person’s identity but simply an indication of their possible nationality allowing other investigations to be made.

See this statement from the British Society for Human Genetics if you want to know why the use of DNA to determine ethnic origin is a seriously daft idea.
UKBA’s letter continues:

…The pilot will also address the issue of children being brought to ASU as part of an asylum seeking family when they are in fact unrelated.

Oh, terrific. Quite apart from the sheer inhumanity of revealing possible family secrets to an already traumatised child and risking family meltdown, the whole idea gives off a whiff of the project’s designers having led blissfully sheltered lives."

TI tell calculator hackers to cease and desist

From the Register: Texas Instruments aims lawyers at calculator hackers.

"Lawyers for Texas Instruments are taking aim at a group of calculator enthusiasts who posted the cryptographic keys used to modify the devices so they run custom-designed software. Over the past few weeks, TI has sent webmasters letters invoking the DMCA, or US Digital Millennium Copyright Act (PDF) (http://www.copyright.gov/legislation/dmca.pdf), and demanding they remove the keys published in blog postings."

Green Dam removed from some Chinese school computers

The Washington Post is reporting that some of the schools in China have had so much trouble with the 'Green Dam' software filters mandated by government that schools administrators have decided to remove the software.

MoJ consultation on web defamation

The UK Minstry of Justice has opened a consultation on Defamation and the internet: the multiple publication rule.

The BBC has the story.

Google Book a disaster for scholars

Following the Department for Justice formally raising concerns about the Google Book settlement last week the deal is in the news and generating lots of heat and light on listservs, blogs, and in the standard news media.

Most of the criticism is focussed on the Google monoply and privacy issues so I thought it was worth referring back to Geoffrey Nunberg's piece in the Chronicle at the end of last month, where he outlines the concerns about the poor handling of meta data which will lead to usabilty problems with Google book search, Google's Book Search: A Disaster for Scholars.

"we're sometimes interested in finding a book for reasons that have nothing to do with the information it contains, and for those purposes googling is not a very efficient way to search. If you're looking for a particular edition of Leaves of Grass and simply punch in, "I contain multitudes," that's what you'll get. For those purposes, you want to be able to come in via the book's metadata, the same way you do if you're trying to assemble all the French editions of Rousseau's Social Contract published before 1800 or books of Victorian sermons that talk about profanity.

Or you may be interested in books simply as records of the language as it was used in various periods or genres. Not surprisingly, that's what gets linguists and assorted wordinistas adrenalized at the thought of all the big historical corpora that are coming online. But it also raises alluring possibilities for social, political, and intellectual historians and for all the strains of literary philology, old and new. With the vast collection of published books at hand, you can track the way happiness replaced felicity in the 17th century, quantify the rise and fall of propaganda or industrial democracy over the course of the 20th century, or pluck out all the Victorian novels that contain the phrase "gentle reader."

But to pose those questions, you need reliable metadata about dates and categories, which is why it's so disappointing that the book search's metadata are a train wreck: a mishmash wrapped in a muddle wrapped in a mess.

Start with publication dates. To take Google's word for it, 1899 was a literary annus mirabilis, which saw the publication of Raymond Chandler's Killer in the Rain, The Portable Dorothy Parker, André Malraux's La Condition Humaine, Stephen King's Christine, The Complete Shorter Fiction of Virginia Woolf, Raymond Williams's Culture and Society 1780-1950, and Robert Shelton's biography of Bob Dylan, to name just a few. And while there may be particular reasons why 1899 comes up so often, such misdatings are spread out across the centuries. A book on Peter F. Drucker is dated 1905, four years before the management consultant was even born; a book of Virginia Woolf's letters is dated 1900, when she would have been 8 years old. Tom Wolfe's Bonfire of the Vanities is dated 1888, and an edition of Henry James's What Maisie Knew is dated 1848.

Of course, there are bound to be occasional howlers in a corpus as extensive as Google's book search, but these errors are endemic...

I have the sense that a lot of the initial problems are due to Google's slightly clueless fumbling as it tried master a domain that turned out to be a lot more complex than the company first realized. It's clear that Google designed the system without giving much thought to the need for reliable metadata. In fact, Google's great achievement as a Web search engine was to demonstrate how easy it could be to locate useful information without attending to metadata or resorting to Yahoo-like schemes of classification. But books aren't simply vehicles for communicating information, and managing a vast library collection requires different skills, approaches, and data than those that enabled Google to dominate Web searching."

ECJ Advocate General sides with Google, web advertisers

The ECJ Advocate General, Poiares Maduro, has just issued an opinion in the Joined Cases C‑236/08, C‑237/08 and C‑238/08

Google France

Google Inc.

v

Louis Vuitton Malletier



Google France

v

Viaticum

Luteciel



Google France

v

CNRRH

Pierre‑Alexis Thonet

Bruno Raboin

Tiger, a franchisee of Unicis

The AG effectively seems to say (disclaimer - I've only very quickly scanned the judgement) that Google, other search engines and web advertisers cannot be held responsible for trademark infringement by virtue of their choice of keywords.

"The question, as put to the Court, is whether the use of a keyword which corresponds to a trade mark can, in itself, be regarded as a use of that trade mark which is subject to the consent of its proprietor...

48. The goal of trade mark proprietors is to extend the scope of trade mark protection to cover actions by a party that may contribute to a trade mark infringement by a third party. This is usually known in the United States as ‘contributory infringement’, (19) but to my knowledge such an approach is foreign to trade mark protection in Europe, where the matter is normally addressed through the laws on liability. (20)

49. The trade mark proprietors are urging the Court to go even further: to rule, in effect, that the mere possibility that a system – in the present cases, AdWords – may be used by a third party to infringe a trade mark means that such a system is, itself, in infringement. Indeed, the trade mark proprietors do not wish to limit their claims to cases where AdWords is actually used by sites offering counterfeit goods; they want to nip that possibility in the bud by preventing Google from being able to make keywords corresponding to their trade marks available for selection. From the existence of a risk that AdWords may be used to promote those counterfeit sites, they deduce a general right to prevent the use of their trade marks as keywords. If the infringement lies in the use of those keywords in AdWords, as the trade mark proprietors claim, that is so whether or not the sites displayed in response actually infringe the trade mark.

50. The Court is thus being asked to expand significantly the scope of trade mark protection. I shall make clear why I believe that it ought not to do so. My examination of the question whether there is trade mark infringement will reveal, first, that the use in AdWords of keywords which correspond to trade marks does not, in itself, constitute a trade mark infringement, and, secondly, that the connection with other (potentially infringing) uses is better addressed, as it has been hitherto, through the rules on liability...

III – Conclusion

155. In view of the above, I propose that the Court state in answer to the questions referred by the Cour de cassation:

(1) The selection by an economic operator, by means of an agreement on paid internet referencing, of a keyword which will trigger, in the event of a request using that word, the display of a link proposing connection to a site operated by that economic operator for the purposes of offering for sale goods or services, and which reproduces or imitates a trade mark registered by a third party and covering identical or similar goods, without the authorisation of the proprietor of that trade mark, does not constitute in itself an infringement of the exclusive right guaranteed to the latter under Article 5 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks.

(2) Article 5(1)(a) and (b) of Directive 89/104 and Article 9(1)(a) and (b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that a trade mark proprietor may not prevent the provider of a paid referencing service from making available to advertisers keywords which reproduce or imitate registered trade marks or from arranging under the referencing agreement for advertising links to sites to be created and favourably displayed, on the basis of those keywords.

(3) In the event that the trade marks have a reputation, the trade mark proprietor may not oppose such use under Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94.

(4) The provider of the paid referencing service cannot be regarded as providing an information society service consisting in the storage of information provided by the recipient of the service within the meaning of Article 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’)."

The AG's detailed analysis is exhaustive (some might say exhausting!) and technical but the decision seems to come down to :

Q: Can the use of a keyword which corresponds to a trade mark, in itself, be regarded as a use of that trade mark which is subject to the consent of its proprietor?

A: No.

I really need to escape my IP addiction. I have absolutely no time to be reviewing these kinds of cases at the moment, so look to the usual suspects for a proper analysis.

Gikii IV Amsterdam 2009

I had the privilege of attending the Gikii IV conference, on the intersections between law, technology and popular culture, at the Institute for Information Law (IViR) in Amstersdam last week. As ever with Gikii it was a thoroughly thought-provoking, engaging and entertaining couple of days and all of the presentations were terrific. Gikii is possibly unique in the conference calendar in that there has never been a dud paper. My own minor contributions aside, every Gikii presentation over the past four years, even and especially when it has been testing some wild ideas on a group of professional peers and friends, has been excellent.

Highlights for me this year were Bernt Hugenholtz's succinct outline of the consequences of the Google Book settlement for Europe, Richard Jones's enlightening story of 'intelligent' electronic tags, Andrés Guadamez on Luddism 2.0, Peter Yu's hilarious contribution on the evolution of intellectual property, Chris Marsden on the politics of net neutrality and TJ McIntyre on the increasing push for legal and technical filters to protect children from the web.

Chris, Andrés and Peter deserve a special mention for not just carrying the toughest slot in the schedule - after lunch on the second day - but really grabbing the audience and stimulating the debate. In addition TJ's meticulously researched paper in the final session of the conference rounded the whole conference off on a high.

Mathias Klang, whose own terrific contribution 'Strangelove and salami: an illustration of the unintended consequences of technical solutions', came in the opening session of the conference on Thursday has offered to host Gikii V at the University of Gothenburg next year.

When the papers and presentations go up on the Gikii website I'll fill in the links here but in the meantime many thanks to all the Gikii goers and organisers, particularly Joris van Hoboken, Lilian Edwards, Andrés Guadamuz and Ian Brown for another terrific two days.