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.

HADOPI 3 strikes resurected by French government

The 3 strikes legislation thrown out by the highest constitutional court in France was ressurected by the French Senate yesterday.

Soham detective on the CRB check paranoia

Chris Stevenson, the detective who solved the Soham murders and put Ian Huntley behind bars, has spoken out in this morning's Times about the government's latest child safety database initiative.

"In 2002 I was a senior detective with Cambridgeshire police. That August two ten-year-old girls disappeared, and I took over the investigation. Two days later I set up the surveillance operation that led to the arrest of Ian Huntley and Maxine Carr a few hours later.

Huntley has not been a free man since. He was convicted of the murders of Holly Wells and Jessica Chapman in December 2003.

Last weekend my actions came back to haunt me. My wife and I went to Benson, Oxfordshire, to celebrate the birthday of my nine-year-old grandson. We went off to see him play as goalkeeper for his village under-10s football team. Mum and dad, sisters, uncles and both grandparents were there to cheer him on.

One of my hobbies is photography, so I took my camera to take a few “action shots” of my grandson. Ten minutes later I was approached by the manager, who said: “Can I ask you not to take photographs, it’s against the regulations. You have to get permission in writing from every parent of every child.”

I felt humbled. I am now a suspected paedophile — along, I fear, with millions of other parents and grandparents. I looked at the pictures I had taken. They were of my grandson making saves as his team came under pressure. I am sure he would have liked to look back on them in the future... I deleted the photographs."

The former (now retired) detective chief superintendent explains in the body of the article that it was an unfortunate chance that brought the two girls into contact with their murderer. A lot has been made about Huntley being a school caretaker and given his history he should not have held such a position but he was at a different school to the two girls. Huntley's partner Maxine Carr had been a classroom assistant in Holly and Jessica's school and it was her the two girls were seeking out when they found Huntley, unfortunately, home alone.

To treat every adult in the country as if they are likely to have the same mentality as the thankfully rare Huntley mindset is less than sensible and as the former detective chief superintendent says, it is not going to stop another tragedy. And despite the reported ministerial climbdown on the 'solve it with another database' approach to child safety, they're continuing to press on and claim that their scheme has "got the balance about right". When the headlines have passed we can therefore expect the system to merrily continue its primary function of ensuring the government has been seen to have done something in response to the tragic events at Soham. That the something is big, costly, affects everyone and involves computers is presumably a bonus from the government's perspective. That it is big, costly, turns every adult in the country into a suspected paedophile and will get in the way of protecting children who really are at risk, is shameful.

Appeals court favours Alcatel-Lucent v Microsoft

From CNet news:

"A federal appeals court on Friday affirmed a lower court ruling that Microsoft infringed on a patent owned by Alcatel-Lucent, but said the jury award of $358 million in damages was excessive...

The patent, whose application was originally filed by engineers at AT&T, covers a method of entering information into fields on a computer screen without using a keyboard."

Apple lock Palm out of iTunes again

The tit for tat wars between Apple and Palm are continuing as Apple has again locked Palm Pre users out of iTunes.

Obama's health reforms and risk psychology

Andrew Koppelman at Balkanization has been explaining one of the key reasons President Obama has been stuggling with his healthcare reform proposals. About 75% of US citizens apparently have health insurance they believe will cover them against any future health problems. They also believe Obama's proposals will put their access to healthcare at risk.

The reality is that insurance companies have an incentive to minimise their financial support for people with serious long term health needs and a recent American Journal of Medicine study suggests 62% of all personal bankruptcies in the US were caused by medical costs. Koppelman says:

"In 2007, 62% of all personal bankruptcies were driven by medical costs."Nationally, a quarter of firms cancel coverage immediately when an employee suffers a disabling illness; another quarter do so within a year," the report states.Most of the medical debtors were well educated, owned homes, and had middle-class occupations, and three-quarters of them had health insurance. "Unless you're a Warren Buffett or Bill Gates, you're one illness away from financial ruin in this country," lead author Steffie Woolhandler, M.D., of the Harvard Medical School, said in an interview. "If an illness is long enough and expensive enough, private insurance offers very little protection against medical bankruptcy, and that's the major finding in our study."

In other words, all those people who oppose health care reform because they like the coverage they’ve got really have no idea of the real dangers they face, because they have no idea what their insurance companies would really do to them if they got sick.This poses a real political challenge for the proponents of reform.The people who will most benefit from the consumer protections that Obama is advocating – those who will experience serious illness in the future – have no idea that they are benefiting, and so will not politically reward those who deliver the benefits.The Democrats could give most Americans substantially greater security and receive no reward for it."

Space-Time Travel Data is Analytic Super-Food!

Jeff Jonas has been thinking about all the data shadows we're leaving in our wake.

"It doesn’t matter who you say you are! Where you are (space), when you’re there (time), and your movements over time (travel) are closer to the truth. I’ve seen a lot of data in my life, and I’d like to think I have a decent grip on what can be accomplished with data and analytics. However, I recently stumbled upon some facts that have radically reshaped my understanding of the world we are living in. What I thought was years away is already here! Our toes are dangling over the edge of a very different future...

I can barely get my mind around the ramifications. My concept about what comes next shifts almost daily now. A government not so keen on free speech could use such data to see a crowd converging towards a protest site and respond before the swarm takes form – detected and preempted, this protest never happens. Or worse, it could be used to understand and then undermine any political opponent.

A stalker might be questioned just days after he starts and before his victim is personally aware of it – detection previously beyond human capacity. Maybe it’s not a crime in this case, and it turns out to be just a private investigator with poor tradecraft hired by a suspicious husband.

Such a surveillance intensive future is inevitable, irreversible and as I have said before here … irresistible.

Why? Companies must be competitive to survive and consumers have quite the appetite for almost anything that optimizes their life, especially if it’s cheap or free...

I think people should know about this imminent new age we are marching into."

US Copyright chief has serious concerns about Google Book settlement

The head of the U.S. Copyright Office has reportedly told a congressional committee that she has serious concerns about the Google book settlement. She suggested that parts of the settlement were "fundamentally at odds with the law."

Update: Here's her statement.
And the NYT on same.
And the 1709 blog.

Copyright trumps censorship in South Korea

From the 1709 blog:

"The authors of A Modern and Contemporary History of Korea have successfully sued their publisher for copyright infringement for publishing an altered version of the work. The publisher had been repeatedly ordered to revise ‘leftist’ sections by the Ministry of Education, Science and Technology under the Elementary and Middle School Education Law. The Hankyoreh reports that ‘the court said that while this law could be used to order a suspension of publication if an alteration order is violated, it cannot be used to limit the right to the integrity of the work by the publisher’. The alterations have been the subject of a campaign by history teachers."

Also:

"An article in The Times suggests that Wordsworth Editions has secured an amazing coup by getting Stephen Joyce, James Joyce’s heir, to agree to a new budget edition of Ulysses. The article fails to mention that Joyce (1882–1941) is revived copyright, so anyone can publish Ulysses without Stephen Joyce’s permission so long as they cough up a reasonably royalty. OUP probably don’t pay any royalties to the Joyce estate on their edition as it was first published in 1993, after Joyce went out of copyright but before he came back in. The problem with publishing a budget edition of Ulysses may not be so much agreeing terms with the copyright owner as other costs – it’s long and notes are a must. For copyright owners like Stephen Joyce who are as concerned about controlling the manner of publication as seeing a financial return revived copyright is a small consolation."

Boyle: copyright black hole swallows our culture

James Boyle's latest article in the FT focuses on the Google Books settlement, which he explains would not be necessary if copyright law wasn't in such a mess. (The article is also available on his blog, where I first picked it up via my news feed reader).

"Librarians call it the 20th-century black hole. The overwhelming force is not gravity but copyright law, sucking our collective culture into a vortex from which it can never escape.

That culture includes millions of books Google wants to make available online. But many are concerned. The European Commission will hold hearings on Monday, while a US judge has extended the deadline for objections to a proposed US legal settlement."

James explains the key problems with the Google books settlement - Google's monopoly over commercially unavailable works and the index to all online books, lack of facility to download books, Google's ability to monitor your reading in unprecedented detail, lack of privacy protections etc. He goes on to conclude:

"What if the critics prevail and no settlement is reached? I would prefer us to fix copyright law so these issues disappear. But if we cannot do that, we need a second-best solution. Google’s escape module has flaws, lots of them, but it is better than staying in the black hole."

The day after the article appeared the EU Commission had their hearing and decided to oppose the Google Book settlement. James Boyle is scathing about their analysis:

"There are good reasons to worry about the Google Book Search Settlement, as I explained at length here. But of all of the reasons to oppose it, this utterly surreal statement is my favourite.

European officials fear that if the Google project goes ahead in the US, a yawning transatlantic gap will open up in education and research.

“Oh my God! The Americans are about to create a private workaround of the enormous mess that we regulators have made of national copyright policy! They will fix the unholy legal screwups that leave most of the books of 20th century culture unavailable, yet still under copyright! They will gain access to their cultural heritage — giving them a huge competitive advantage in education. This MUST BE STOPPED!! No one can be allowed to fix this for any other country because then we would be left alone stewing in our own intellectual property stupidity! We must forbid their progress in order to protect our ignorance.”

But wait, there’s more. If anyone does do it, it must be the state! (Which so far has failed completely to provide legal access to orphan works or commercially unavailable works, works that are unavailable because of… wait for it, wait for it, the state locking up our cultural heritage unnecessarily)"

Tax Payers Alliance 'Big Brother Watch'

Via Spyblog:

"The Sunday Times carries this interesting announcement by the TaxPayers' Alliance, of a new campaign called "Big Brother Watch".

Their website www.bigbrotherwatch.org.uk currently states that this is due to launch in October.

The fight against the "surveillance state" is obviously necessary, but what exactly can this new campaign achieve, that the existing campaign groups could not do just as well, or much better, if they had some more money ?

[...]

Why exactly should Spy Blog, or anybody else who cares about these issues, support Yet Another Campaign Organisation rather than existing ones like:

• the NO2ID Campaign,
  
• Privacy International,
  
• GeneWatch UK ,
  
• 
  
• the Open Rights Group
  
• the Foundation for Information Policy Research
  
• Action on Rights for Children
  
• Liberty Human Rights
  

etc. etc.

"

What Intellectual Property Law Should Learn from Software

From James Boyle, What Intellectual Property Law Should Learn from Software

Recommended.

Google page rank modelling biodiversity

From the BBC:

"Google's algorithm for ranking web pages can be adapted to determine which species are critical for sustaining ecosystems, say researchers.

According to a paper in PLoS Computational Biology, "PageRank" can be applied to the study of food webs.

These are the complex networks of who eats whom in an ecosystem.

The scientists say their version of PageRank could be a simple way of working out which extinctions would lead to ecosystem collapse...

Co-author Dr Stefano Allesina realised he could apply PageRank to the problem when he stumbled across an article in a journal of applied mathematics describing the Google algorithm.

The researchers say they had to make minor changes to it to adapt it for ecology.

Dr Allesina, of the University of Chicago's department of ecology and Evolution, told BBC News: "First of all we had to reverse the definition of the algorithm.

"In PageRank, a web page is important if important pages point to it. In our approach a species is important if it points to important species."

PageRank apparently performs as well as many of the current computational models that ecologists use in this area. Nice.

Musicians protest UK 3 strikes plans

I don't suppose Peter Mandelson expected this kind of negative reaction from musicians and composers when he proposed and defended introducing a three strikes regime in the UK.

"In a statement seen by the Guardian, a coalition of bodies representing a range of stars including Sir Paul McCartney, Sir Elton John and Damon Albarn attacks the proposals as expensive, illogical and "extraordinarily negative".

The Featured Artists Coalition (FAC), the British Academy of Songwriters, Composers and Authors (Basca) and the Music Producers Guild (MPG) have joined forces to oppose the proposals to reintroduce the threat of disconnection for persistent file sharers, which was ruled out in the government's Digital Britain report in June.

The plans have already been attacked by privacy campaigners, internet service providers and a range of MPs, some of whom accuse the business secretary of being influenced by secret meetings with senior figures from the music and film industry, a charge he denies."

The Guardian has seen the groups' statement which apparently says:

"We vehemently oppose the proposals being made and suggest that the stick is now in danger of being way out of proportion to the carrot. The failure of 30,000 US lawsuits against consumers and the cessation of the pursuit of that policy should be demonstration enough that this is not a policy that any future-minded UK government should pursue."

Nesson responds to critics of his Tenanbaum strategy

Charles Nesson has responded to critics of his litigation strategy in the Tenenbaum case. Some highlights.

"this trial was not an exercise in getting joel off the hook...

starting from scratch the fair use issue now looms as a fundamental question in the allocation of function between judge and jury as providing a limitation in wisdom to the expansive power of copyright, so let them doubt, then consider, then be convinced...

there are two questions: first, when, if ever (and i say never) did congress decide that draconian damages against noncommercial consumers was the appropriate response to peer-to-peer file sharing? second, reached only if the answer to the first requires it, would be whether the power to impose this damage at the unconstrained behest of the copyright industry imposed upon individual by civil process (thereby bypassing the protections afforded criminal defenants) with no attendant compensatory component, no proof of actual damage caused by the defendant, purely for deterrence of conduct involving no trespass is unconstitutional."

There are some important issues to be addressed in the case as Prof. Nesson says and it will continue to be an interesting one to watch.

SCO revivial

Here's something else I missed whilst on holdiday, the SCO case has been revived according to the Washington Post.

Groklaw has more details.

And Hugo Cox comments at the 1709 blog.

Firefox Plug-In Frees Court Records

This one happened in August when I was on holiday but according to Wired,

"Access to the nation’s federal law proceedings just got a public interest hack, thanks to programmers from Princeton, Harvard and the Internet Archive, who released a Firefox plug-in designed to make millions of pages of legal documents free.

Free as in beer and free as in speech...

The plug-in was released by Princeton’s Center for Information Technology Policy, coded by Harlan Yu and Tim Lee, under the direction of noted computer science professor Ed Felten."

Live webcasts of sports events on Internet don't violate copyrights

An Israeli court has reportedly held that live webcasts of sports events on Internet don't violate copyrights so "live-footy.org web site will be allowed to continue free broadcasts of Premier League soccer games."

I'd really like to see the detailed decision. Apparently the judge held that copyright was not breached because web broadcasting is not the same as TV broadcasting and the web viewers would not necessarily therefore be lost paying customers. She refused to allow the identity of the website owner to be revealed and sanctioned the continuation of the sites coverage of the premier league.

Update: I forgot to mention that the Premier League are natually planning to appeal the decision.

Quantum administrators

There's a cost cutting efficiency drive sweeping the public services sector at the moment and it struck me that the obsessional, sometimes ambition driven, sometimes absolute belief in the desirability of

• delivering a standard service to everyone through
• neutralising the infinitely variable and therefore unreliable human elements by
  
• breaking organisational processes into smaller and smaller constituent parts
• the operation and cost of which can be rigorously bureaucratically controlled

is a bit like taking one of the athletes preparing for the 2012 Olympics and cutting them up into their constituent atoms, in the hope that by controlling the atoms you can somehow engineer a medal winning performance. The essence of what was once an elite athlete has long since disappeared and you are so far away from controlling the atoms in a way that would secure that elusive medal and so buried in the vast task of trying to control them, that not only have you not noticed the athlete has been killed but the only thing you can think of doing is divide the atoms up into their even smaller sub atomic particles. And so you sail blindly and vigorously into the completely alien quantum universe, so far beyond the rules of nature of the macroscopic world of the athlete and comprehensibilty to the skill set you bring to it that... well... let's say the medal is not getting any closer.

I've had the privilege of working at the Open University for over 14 years now and the secret of our success has being putting people in touch with people and the absolutely phenomenal goodwill that generates, in spite - shock horror - of the flawed variability of humankind. That public services cost cutting has reached us too but I'm hoping the quantum administrative mindset - a universal constituent in all large organisations (commercial and public sector) that seem to evolve universally towards a state of insanity - can be held at bay suffiently to ensure the survival of the essence of what the OU is all about: to be open to people, places, methods and ideas and promote educational opportunity and social justice by making high-quality university education open to everyone.