Balkinization on ACTA

Margot Kaminski has a terrific review of ACTA over at the equally terrific Balkinization blog.

"The Anti-Counterfeiting Trade Agreement, a plurilateral agreement negotiated outside of the WTO's processes and protections, is the biggest set of new laws to hit international Intellectual Property. Many organizations have had serious concerns about the potential civil liberty and economic impact of ACTA. A draft text of ACTA has been leaked here. Many of these issues are clearly still up for debate. The biggest three issues may be the scope of criminal copyright infringement, the expansion of the US Digital Millenium Copyright Act (DMCA) internationally, and the creation of a new international institution (an ACTA "Committee") to deal with enforcement of ACTA. In short, ACTA is geared up to do almost exactly what I predicted in a "Recent Development" in YJIL last year (The Origins and Potential Impact of the Anti-Counterfeiting Trade Agreement (ACTA), 34 Yale J. Int’l L. 261 (2009)). It amps up IP protection and criminal sanctions, without respecting existing international institutional process and involving the interests of developing countries. Unsurprisingly, the US is an IP maximalist here, pushing for the strongest provisions. Singapore is a minimalist. Australia fluctuates depending on the provision. Japan appears to be on board with the US except for DMCA provisions, with which it heartily disagrees. What's at stake here? Institutional process and legitimacy (why is this taking place outside of the World Trade Organization (WTO) and WIPO?), and a rush to standardization on approaches to the Internet around the US standard, which arguably isn't the ideal. Privacy interests (implicated by data sharing with both other countries and with rights' holders) and liberty interests (why rush to the unreasonable US standard of criminalization?) are also very much at stake."

Read in full, particularly her list of 24 important things to note.

Keywords at the ECJ again -- but this time Google's not a party

From the excellent IPKat:

"The IPKat has just taken a look at Case C-278/08 Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmüller GmbH v Günter Guni and trekking.at Reisen GmbH,...

It's another AdWords case, involving Google's "paid referencing service" which enables any economic operator, by means of the reservation of a keyword, to place a link to its own advertisement which is flagged as a "sponsored link", when the user of its search engine employs that keywords as a search term, in addition to the "natural results" of the search which the user gets irrespective of whether the keyword is an AdWord...

This morning the Court of Justice ruled as follows:

"Article 5(1) ... must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with or similar to that trade mark which that advertiser has, without the consent of that proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertising does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or by an undertaking which is economically connected to it or, on the contrary, originate from a third party".

This ruling relates only to the first referred question since the Court concluded that an answer the second would not be useful for resolving the underlying dispute. The Court's position here is unsurprising in light of Tuesday's ruling in Google (see here and here), which it cites as authority. Indeed, if you think you might be suffering from déjà vu, you might note the similarity between the paragraph above and the first paragraph of the Court's Google ruling."

Stephen Fry's speech condemning the Catholic church

Following the Pope's partial apology to Irish victims of clerical child sexual abuse I was prompted to watch Stephen Fry's emotional speech condemning the Catholic Church and articulating why he believes the church is a malevolent force in the world and how it could and should change.


The Intelligence² Debate - Stephen Fry (Unedited)
Uploaded by Xrunner17. - Watch feature films and entire TV shows.

BPI say no need for debate on Digital Economy Bill

According to ORG the BPI Director of Public Affairs, Richard Mollett, has said today that there is no need for debate on the digital economy bill.

"This afternoon, Richard Mollett, Director of Public Affairs for the BPI, told the Counter 2010 conference in Manchester this afternoon that the Lords had scrutinised the Digital Economy Bill enough, and there is no further need for debate.
The BPI are saying there is no need for democratic debate by our elected MPs in the Commons. Richard Mollett, who is a Labour candidate for parliament, wants MPs to throw away their democratic rights and duties. This is corporate lobbying of the worst sort."

Update: ORG question BPI's denial of above.

Heathrow security man ogled female colleague on strip search machine

From today's Independent:

"An airport worker allegedly caught ogling images of a female colleague in a full-body scanner faces the sack after being given a police warning for harassment.

The Heathrow worker, named by The Sun newspaper as 25-year-old John Laker, allegedly made lewd remarks to colleague Jo Margetson, 29, after she entered an X-ray machine by mistake"

Like that wasn't entirely predictable.

Response from my MP on objections to Digital Economy Bill

"I've had the following response from my MP, Liberal Democrat Evan Harris, to my letter pointing out my objections to the digital economy bill.

"Dear Mr Corrigan,

Thank you for your recent email about the Digital Economy Bill. Lack of effective scrutiny for legislation is something that I have a particular concern about – and on which I have been very active in Parliament – and I therefore wanted to take some time to craft a personal response to this campaign. I would like to respond firstly to the substantial concerns that remain about the Bill itself and secondly to the process by which this Bill is being rushed through

1. DIGITAL ECONOMY BILL - concerns

At our Conference last weekend, the Liberal Democrats overwhelmingly voted for a motion condemning the Digital Economy Bill’s website-blocking and disconnection provisions. I worked with its sponsor, Julian Huppert (our candidate for Cambridge), to promote the motion. Unlike the other two parties the Liberal Democrats are a democratic party and this motion is therefore now part of our party’s policy. The motion is too long to quote here in its entirety (although I recommend you look at it on the website http://bit.ly/LD-DEBill ) but the most significant parts are:

        Conference condemns:

        i) Website-blocking and disconnecting internet connections as a response to copyright infringement.

        ii) The threat to the freedom, dignity and well-being of individuals and businesses from the monitoring of their internet activity, the potential blocking of their websites and the potential termination of their internet connections, which could lead to the closure of internet hotspots

        iii) The Digital Economy Bill for focusing on illegal file-sharing rather than on nurturing creativity

        Conference supports:

        a) The principle of net neutrality, through which all content, sites and platforms are treated equally by user access networks participating in the Internet.

        b) The rights of creators and performers to be rewarded for their work in a way that is fair, proportionate and appropriate to the medium.

        Conference therefore opposes excessive regulatory attempts to monitor, control and limit internet access or internet publication, whether at local, national, European or global level.

Within Parliament Lib Dems have been working to improve this bad legislation.

We already managed to remove the provisions to allow Lord Mandelson to change copyright law at a stroke. We attempted, with our Amendment 120A in the House of Lords which would have changed the Government’s Clause 17, to require the Government to go to the High Court to get an injunction if it wanted to require ISPs to block access to websites that persist in publishing a substantial amount of copyrighted material despite repeated requests to remove it. It creates quite a high threshold that the Government would have to overcome, and ensures that – if this provision is to remain – then there must be proper scrutiny and due process. It requires that all of the following conditions are met:

        a) The website is holding a "substantial proportion" of copyrighted material;

        b) The operator has been contacted a number of times and asked to remove the content but failed to do so;

        c) The copyright holder has made a reasonable effort to ensure there are legal ways of accessing the content online;

        d) Human rights implications, such as the right to freedom of expression, have been taken into consideration by the Court.

Even with this amendment, I believe that the Bill still represents a threat to freedom of expression. I am confident that, due to the controversial nature of the Bill, it will not be able to be passed in the likely remaining 8 sitting days of this Parliament, or that this measure will go through in the "wash-up" when parliament is about to be resolved and the parties negotiate what bits of bills can get through. However I am not complacent about this and it is important that organisations such as the Open Rights Group keep up the pressure to ensure that both Labour and the Conservatives are aware of the electoral costs of allowing this legislation through.

Particularly following the Conference vote, I would like to take the opportunity to highlight the fact that it is now Liberal Democrat policy to oppose:

        a) Website blocking and disconnection

        b) Sweeping monitoring of internet activity

        c) Threats to net neutrality

Liberal Democrats are instinctively opposed to attacks on civil liberties and censorship – and I will continue to vote against these extreme proposals whenever they come up.

2. BETTER SCRUTINY

For many years I have been a strong advocate working for better scrutiny of legislation in Parliament. In the abstract it seems like something of a technical concern, but in reality it has a fundamental impact on the legislation passed in this country. There are countless examples of important Bills where whole groups of amendments or clauses are never even debated let alone voted on in the elected House. The reason for this is that the Government has control over the entirety of Parliament’s timetable. It cannot be right that the Government regulates (and indeed inhibits) Parliament’s ability to scrutinise the Executive – and it seems fairly obvious that it’s the job of legislators to scrutinise legislation.

Recently as a leading member of the elected Wright Committee on the Reform of Parliament I was successful in pushing through an amendment, on a cross-party basis, to establish a "House Business Committee" at the start of the next Parliament. This would ensure that the House itself, not the Government whips could decide its own timetable, while providing for sufficient time for the Government to put forward the business that it was elected on, and mandated to carry out. Scrutiny will obviously depend on good MPs to scrutinise the legislation, but this change will at least give them the opportunity to do so – an opportunity they are currently denied. A report of my efforts in this area can be found in this article by Henry Porter in the Observer: http://bit.ly/cjpDmN

However, another part of the problem for timetabling is that Parliament’s time is very unpredictable, as the Prime Minister can call an election at any time. When the election is called there is therefore the issue of what to do with legislation that Parliament has spent a lot of time on, but not yet passed into law. Fixed-term Parliaments would get round the problem posed by this and the horse-trading the parties (commonly known as the "wash-up") could no longer even pretend to be justified. I, along with the rest of my party, have long supported fixed-term Parliaments.

Accordingly I think I have a strong record of action supporting my belief that legislation should not be passed without sufficient and effective scrutiny. But in this case, I have additional concerns about the legislation in question.

Thanks once again for contacting me about this important issue, and thank you for keeping up the pressure against this unacceptable legislation.

Yours sincerely

Evan Harris"

He's a little confused about the detail - supporting amendment 120a whilst simultaneously support the emergency motion opposing web blocking - but seems to be opposed to the digital economy bill going through in the wash up of legislation before the election. I've responded:

"Dear Dr Harris,

Thanks for your response and I wish you luck with your efforts to block the passing of the digital economy bill in its current form before the election.  There seems to be a little confusion, though. I would just point out that amendment 120a, which you seem to support, was the web censorship amendment that has raised so many concerns, not least amongst your colleagues in the Liberal Democrats who supported the nicely conceived emergency motion you also cite http://bit.ly/LD-DEBill, opposing amendment 120a.

I appreciate it’s a busy time for MPs but if anything this reinforces the need to avoid rushing complex legislation through parliament without proper scrutiny, when even those with a well balanced perspective on the preferred shape of such regulations can misinterpret some of the key details, in the thick of the noise and furious activity that constitutes the lead in to a general election."

Big win for Google in ECJ adwords case v Louis Vuitton Malletier et al

On the day when the media focus is on Google moving from mainland China to Hong Kong the really significant Google story is the big win in their European Court of Justice case against Louis Vuitton Malletier.  In what could prove to be a hugely important internet and trademarks decision, the court held that

"Google has not infringed trade mark law by allowing advertisers to purchase keywords corresponding to their competitors’ trade marks."  

They did warn however that:

"Advertisers themselves, however, cannot, by using such keywords, arrange for Google to display ads which do not allow internet users easily to establish from which undertaking the goods or services covered by the ad in question originate"

Court of Justice of the European Union, PRESS RELEASE No 32/10 gives an outline of the decision. The full text of case number C-236/08 is also available at the http://curia.europa.eu website.

Update: The Grand Chamber of the Court takes 21 paragraphs to outline the technicalities of EU trademark law involved in the case and then explains the Google adwords service (paras 22 -27). Then -

"28      Vuitton, which markets, in particular, luxury bags and other leather goods, is the proprietor of the Community trade mark ‘Vuitton’ and of the French national trade marks ‘Louis Vuitton’ and ‘LV’. It is common ground that those marks enjoy a certain reputation.

29      At the beginning of 2003, Vuitton became aware that the entry, by internet users, of terms constituting its trade marks into Google’s search engine triggered the display, under the heading ‘sponsored links’, of links to sites offering imitation versions of Vuitton’s products. It was also established that Google offered advertisers the possibility of selecting not only keywords which correspond to Vuitton’s trade marks, but also those keywords in combination with expressions indicating imitation, such as ‘imitation’ and ‘copy’.

30      Vuitton brought proceeding against Google with a view, inter alia, to obtaining a declaration that Google had infringed its trade marks.

31      Google was found guilty of infringing Vuitton’s trade marks by a judgment of 4 February 2005 of the Tribunal de grande instance de Paris (Regional Court, Paris), and subsequently, on appeal, by judgment of 28 June 2006 of the Cour d’appel de Paris (Court of Appeal, Paris). Google has brought an appeal on a point of law (cassation) against that latter judgment."

Similar cases were brought by Viaticum, Luteciel and CNRRH.

Paragraphs 55 - 58, 97 - 99, 104 -105 and 114 - 120  get to the heart of the trademark infringement issues in the case:

"55      Although it is clear from those factors that the referencing service provider operates ‘in the course of trade’ when it permits advertisers to select, as keywords, signs identical with trade marks, stores those signs and displays its clients’ ads on the basis thereof, it does not follow, however, from those factors that that service provider itself ‘uses’ those signs within the terms of Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94.

56      In that regard, suffice it to note that the use, by a third party, of a sign identical with, or similar to, the proprietor’s trade mark implies, at the very least, that that third party uses the sign in its own commercial communication. A referencing service provider allows its clients to use signs which are identical with, or similar to, trade marks, without itself using those signs.

57      That conclusion is not called into question by the fact that that service provider is paid by its clients for the use of those signs. The fact of creating the technical conditions necessary for the use of a sign and being paid for that service does not mean that the party offering the service itself uses the sign. To the extent to which it has permitted its client to make such a use of the sign, its role must, as necessary, be examined from the angle of rules of law other than Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94, such as those referred to in paragraph 107 of the present judgment.

58      It follows from the foregoing that a referencing service provider is not involved in use in the course of trade within the meaning of the abovementioned provisions of Directive 89/104 and of Regulation No 40/94.

59      Consequently, the conditions relating to use ‘in relation to goods or services’ and to the effect on the functions of the trade mark need to be examined only in relation to the use, by the advertiser, of the sign identical with the mark...

62      The facts giving rise to the dispute in the main proceedings in Case C‑236/08 are similar to certain of the situations described in those provisions of Directive 89/104 and of Regulation No 40/94, namely the offering of goods by a third party under a sign identical with the trade mark and the use of that sign in advertising. It is apparent from the file that signs identical with Vuitton’s trade marks have appeared in ads displayed under the heading ‘sponsored links’.

63      In Cases C‑237/08 and C‑238/08, by contrast, there is no use in the third party’s ad of a sign identical with the trade mark.

64      Google submits that, in the absence of any mention of a sign in the actual ad, it cannot be argued that use of that sign as a keyword equates to use in relation to goods or services. The trade mark proprietors challenging Google and the French Government take the opposite view.

65      In this connection, it should be borne in mind that Article 5(3) of Directive 89/104 and Article 9(2) of Regulation No 40/94 provide only a non-exhaustive list of the kinds of use which the proprietor may prohibit (Arsenal Football Club, paragraph 38; Case C‑228/03 Gillette Company and Gillette Group Finland [2005] ECR I‑2337, paragraph 28; and Adam Opel, paragraph 16). Accordingly, the fact that the sign used by the third party for advertising purposes does not appear in the ad itself cannot of itself mean that that use falls outside the concept of ‘[use] … in relation to goods or services’ within the terms of Article 5 of Directive 89/104.

66      Furthermore, an interpretation according to which only the uses mentioned in that list are relevant would fail to have regard for the fact that that list was drawn up before the full emergence of electronic commerce and the advertising produced in that context. It is those electronic forms of commerce and advertising which can, by means of computer technology, typically give rise to uses which differ from those listed in Article 5(3) of Directive 89/104 and Article 9(2) of Regulation No 40/94...

97      It follows from those factors that, when internet users enter the name of a trade mark as a search term, the home and advertising page of the proprietor of that mark will appear in the list of the natural results, usually in one of the highest positions on that list. That display, which is, moreover, free of charge, means that the visibility to internet users of the goods or services of the proprietor of the trade mark is guaranteed, irrespective of whether or not that proprietor is successful in also securing the display, in one of the highest positions, of an ad under the heading ‘sponsored links’.

98      Having regard to those facts, it must be concluded that use of a sign identical with another person’s trade mark in a referencing service such as that at issue in the cases in the main proceedings is not liable to have an adverse effect on the advertising function of the trade mark.

d) Conclusion

99      In the light of the foregoing, the answer to the first question in Case C‑236/08, the first question in Case C‑237/08 and the first and second questions in Case C‑238/08 is that:

–        Article 5(1)(a) of Directive 89/104 and Article 9(1)(a) of Regulation No 40/94 must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that ad does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party;

–        an internet referencing service provider which stores, as a keyword, a sign identical with a trade mark and organises the display of ads on the basis of that keyword does not use that sign within the meaning of Article 5(1) of Directive 89/104 or of Article 9(1)(a) and (b) of Regulation No 40/94...

104    However, with regard to the question whether a referencing service provider, when it stores those signs, in combination with terms such as ‘imitation’ and ‘copy’, as keywords and permits the display of ads on the basis thereof, itself uses those signs in a way which the proprietor of those marks is entitled to prohibit, it must be borne in mind, as has been pointed out in paragraphs 55 to 57 of the present judgment, that those acts of the service provider do not constitute use for the purposes of Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94.

105    Accordingly, the answer to the second question referred in Case C‑236/08 is that an internet referencing service provider which stores, as a keyword, a sign identical with a reputable trade mark and arranges the display of ads on the basis of that keyword does not use that sign within the meaning of Article 5(2) of Directive 89/104 or of Article 9(1)(c) of Regulation No 40/94...

114    Accordingly, in order to establish whether the liability of a referencing service provider may be limited under Article 14 of Directive 2000/31, it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores. 

115    With regard to the referencing service at issue in the cases in the main proceedings, it is apparent from the files and from the description in paragraph 23 et seq. of the present judgment that, with the help of software which it has developed, Google processes the data entered by advertisers and the resulting display of the ads is made under conditions which Google controls. Thus, Google determines the order of display according to, inter alia, the remuneration paid by the advertisers.

116    It must be pointed out that the mere facts that the referencing service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions from liability provided for in Directive 2000/31.

117    Likewise, concordance between the keyword selected and the search term entered by an internet user is not sufficient of itself to justify the view that Google has knowledge of, or control over, the data entered into its system by advertisers and stored in memory on its server.

118    By contrast, in the context of the examination referred to in paragraph 114 of the present judgment, the role played by Google in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords is relevant.

119    It is in the light of the foregoing considerations that the national court, which is best placed to be aware of the actual terms on which the service in the cases in the main proceedings is supplied, must assess whether the role thus played by Google corresponds to that described in paragraph 114 of the present judgment.

120    It follows that the answer to the third question in Case C‑236/08, the second question in Case C‑237/08 and the third question in Case C‑238/08 is that Article 14 of Directive 2000/31 must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned."

The bottom line appears to be that Google is not liable for trademark infringement in the operation of its adwords service unless it has actual knowledge of the piggybacking of its advertisers on that service to deliver advertisments deliberately designed to mislead consumers and thereafter fails to take down such adverts.  So there are circumstances in which Google could be held to be guilty of trademark infringement by national courts but effectively this decision constitutes a big win for the seach giant.

Update 2: Here's Google's take on the decision.

"Some companies want to limit choice for users by extending trade mark law to encompass the use of keywords in online advertising. Ultimately they want to be able to exercise greater control over the infomation available to users by preventing other companies from advertising when a user enters their trade mark as a search query. In other words, controlling and restricting the amount of information that users may see in response to their searches.

Today, the Court confirmed that Google has not infringed trade mark law by allowing advertisers to bid for keywords corresponding to their competitors’ trade marks. It also confirmed that European law that protects internet hosting services applies to Google’s AdWords advertising system. This is important because it is a fundamental principle behind the free flow of information over the internet."

Update 3: WSJ report on the case as do the Guardian.

Child protection: detention and eCAF

On Friday Home Office minister Meg Hillier took a leap into la la land, attempting to justify the UK government's continued practice of locking up child asylum seekers and Michael Morpurgo filmed a powerful 2 minute denounciation of the UK government outside the Yarl's Wood Immigration Removal Centre in Bedfordshire. Essential viewing.

Today the atrocious electronic Common Assessment Framework eCAF database goes live and the prime minister is promising 'superfast broadband' for all (that's 2M cf standard 100M in Korea btw) and that the magic internet will cure all our ills.

"So building on this next generation web and the radical opening up of information and data - and therefore more power in people’s hands - the steps towards achieving this ambition to become the leader in the next stage of the digital revolution are three-fold:
First to digitalise - to make Britain the leading superfast broadband digital power creating 100 per cent access to every home;
Second to personalise - seizing the opportunities for voice and choice in our public services by opening up data and using the power of digital technology to transform the way citizens interact with government;
Third to economise - in the Pre-Budget Report we set out our determination to find £11 billion of savings by driving up operational efficiency, much of it enabled by the increased transparency and reduced costs made available by new technology...

The other day I heard how one of Britain’s leading musicians, who spends most of his time abroad, reads his young son a bedtime story from thousands of miles away using Skype. And millions of us can now spend more time with our families because technology allows people to work easily from home...

The internet revolution is quite literally creating a different world.
But just imagine if you weren’t part of that world.
Imagine if you had never accessed the Internet.
Imagine if you had no access to the best deals on the virtual high street - that can save you on average £560 a year by shopping and paying bills online.
Well that is reality for around one in five adults in the UK. 21% of UK adults have never accessed the internet. That’s over a fifth trapped in a second tier of citizenship, denied what I increasingly think of as a fundamental freedom in the modern world: to be part of the internet and technology revolution.
This is unfair, economically inefficient and wholly unacceptable.
Consider the advent of electricity. How acceptable would it have been to say that only some people should have access to electricity?
Superfast broadband is the electricity of the digital age. And I believe it must be for all - not just for some.
We have already decided to commit public funding to ensure existing broadband reaches nearly every household in Britain by 2012.
Now government must decide what action it will take to bring about universal access to the next generation of superfast broadband, simultaneously ensuring the highest quality content is available online and available to all."

Nice that he's heard of Skype I suppose.  But how can he possibly square the circle of universal access to broadband internet services at the same time as his government is proposing to pass the digital economy bill containing measures to facilitate the censorship anid disconnection of potentially millions of people?

Meanwhile as Mr Brown gets excited about the Net, he presides over a government which through technology like eCAF and prisons like Yarl's Wood endanger the welfare of children and families.

Update: Looks like the government has noticed the 11000+ objections to their digital economy bill but with typical bloody minded stupidity are pressing ahead with pushing it through without proper debate, though promising a (no doubt half baked) amendment on a disconnection appeals process, before the election.

Update 2: Charles Arthur has done a useful 'what you need to know' about the digital economy bill article.