Google loses bid for EU trademark on 'GMail'

Google has lost in its attempt to get an EU trademark registered on "GMail" according to a ruling by the EU Office for Harmonisation in the Internal Market (OHIM). The ruling is briefly covered in all the usual tech. news outlets.

Essentially Google's mark is considered to be too similar to an earlier German trademark.

"The services of the earlier mark, amongst others, are, telecommunications, particularly
services in and for electronic communication networks, like Internet or World Wide
Web, electronic mail service, dissemination of information.

The services of the contested mark are, telecommunications; communications by
computer terminals; message sending; electronic mail services.

The contested services are identical to those of the earlier right or indeed included
within the broader terms of the earlier right’s specification since they are all
telecommunications services...

The earlier figurative mark is protected in Germany. Therefore, it is the impression that
the signs make on the German public and their meaning and pronunciation in the
German language which are relevant for their comparison.

Likelihood of confusion in only one part of the Community is sufficient as a relative
ground for the rejection of the application in issue...

The Office is of the opinion that the high degree of
similarity between the marks leaves little room for small differences to be observed by
the general public. Moreover, the general public is used to companies using variations
of trade marks so they will see the contested application as a simple version of the
earlier right and believe they come from the same undertaking.

As has been discussed, the dominant elements of both marks are identical and
furthermore they are the first words to which attention is drawn. The fact that that
earlier right has additional wording is irrelevant since the relevant consumer would see
this as emphasising the “GMAIL” services due to its promotional qualities which highlight
the speed of the services concerned.

Therefore, when taking into account that the services in comparison are identical, the
Office concludes that there is a strong likelihood of confusion given the strong visual
and phonetic similarity between the marks in dispute.

Therefore, the contested CTM application is to be rejected in full due to its similarity to
the earlier German trade mark registration."

FIPR say Phorm is illegal

The Foundation for Information Policy Research has said that the Phorm wiretapping adware service is illegal under UK law. They have sent an open letter, penned by Richard Clayton and Nicholas Bohm, to the Information Commissioner, Richard Thomas, on the matter, as he is investigating the Phorm service. FIPR's associated press release states:

"The Foundation for Information Policy Research (FIPR) has today released the text of an open letter to Richard Thomas, the Information Commissioner (IC) on the legality of Phorm Inc's proposal to provide targeted advertising by snooping on Internet users' web browsing.

The controversial Phorm system is to be deployed by three of Britain's largest ISPs, BT, Talk Talk and Virgin Media. However, in FIPR's view the system will be processing data illegally:

• It will involve the processing of sensitive personal data: political opinions, sexual proclivities, religious views, and health -- but it will not be operated by all of the ISPs on an "opt-in" basis, as is required by European Data Protection Law.
• Despite the attempts at anonymisation within the system, some people will remain identifiable because of the nature of their searches and the sites they choose to visit.
• The system will inevitably be looking at the content of some people's email, into chat rooms and at social networking activity. Although well-known sites are said to be excluded, there are tens or hundreds of thousands of other low volume or semi-private systems.

More significantly, the Phorm system will be "intercepting" traffic within the meaning of s1 of the Regulation of Investigatory Powers Act 2000 (RIPA). In order for this to be lawful then permission is needed from not only the person making the web request BUT ALSO from the operator of the web site involved (and if it is a web-mail system, the sender of the email as well).

FIPR believes that although in some cases this permission can be assumed, in many other cases, it is explicitly NOT given -- making the Phorm system illegal to operate in the UK:

• Many websites require registration, and only make their contents available to specific people.
• Many websites or particular pages within a website are part of the "unconnected web" -- their existence is only made known to a small number of trusted people.

The full text of the open letter can be viewed at:

http://www.fipr.org/080317icoletter.html

QUOTES

Said Nicholas Bohm, General Counsel, FIPR:

"The need for both parties to consent to interception in order for it to be lawful is an extremely basic principle within the legislation, and it cannot be lightly ignored or treated as a technicality. Even when the police are investigating as serious a crime as kidnapping, for example, and need to listen in to conversations between a family and the criminals, they must first obtain an authorisation under the relevant Act of Parliament: the consent of the family is not by itself sufficient to make their monitoring lawful."

Said Richard Clayton, Treasurer, FIPR:

"The Phorm system is highly intrusive -- it's like the Post Office opening all my letters to see what I'm interested in, merely so that I can be sent a better class of junk mail. Not surprisingly, when you look closely, this activity turns out to be illegal. We hope that the Information Commissioner will take careful note of our analysis when he expresses his opinion upon the scheme.""

Update: BBC report on same.

Stanford support RDR in Harry Potter Lexicon case

The Stanford Center for Internet and Society are supporting RDR Books in their defence of the lawsuit being brought by JK Rowling and her publishers, over the publication of a print version of the Harry Potter Lexicon website. Anthony Falzone of the CIS says:

"In our brief, we explain both why the Lexicon is the sort of important and transformative work that fair use has long protected, and why Ms. Rowling is not entitled to the injunction she seeks.

Read our full brief here.

And if you want to know what Rowling says, here is her brief, too, filed last month.

UPDATE: Ms. Rowling's d reply brief was filed on February 27. The briefing on her preliminary injunction motion is now complete, and the hearing on this motion is scheduled for March 13 in New York."

Extending wiretapping to the Net

From the Economist:

"Governments want to extend wiretapping rules from phones to the internet, but doing so is hard

AMONG the many benefits of the internet's rise over the past decade has been the advent of free phone calls between its users—and much cheaper calls even for people who are not online, since ordinary calls can be partly routed over the internet. For people who work in foreign countries, have friends and relatives spread around the world, or simply have to make a lot of calls, this is great news. But for law-enforcement organisations who are used to being able to tap conventional telephone networks, it is causing increasingly painful headaches. Around the world, the emergence of voice-over-internet-protocol (VoIP) telephony is forcing authorities and communications firms into both conflict and co-operation.

Their shared problem is a fundamental one that results from the very nature of the internet. In the old world of telecoms, the path of a call was easy to follow: a continuous analogue or digital connection was established between the two parties, so it was easy for investigators to select a point somewhere along the line (at the telephone exchange nearest to the caller, for example) to tap the call.

On the internet things are very different. All information, whether e-mails, web pages, music downloads or voice calls, is chopped up into small packets of data and fired off across the network. The path one packet takes across the sprawling network may be different from the path of the next, and packets may arrive at the destination out of order, or not arrive at all. If intercepting a traditional phone call is like apprehending a single suspect at his home, eavesdropping on a VoIP call is more like trying to capture all the members of a gang as they cross a busy city in a fleet of separate vehicles. "

Apple sued for patent infringement

From the Washington Post:

"Apple Inc. was sued Wednesday over allegations its iTunes online music store and iPod music players are illegally using a patented method for distributing digital media over the Internet.

Atlanta-based ZapMedia Services Inc. sued Apple in U.S. District Court for the Eastern District of Texas, accusing the Cupertino-based company of violating two ZapMedia patents...

The patents in question cover a way of sending music and other digital content from servers to multiple media players, a broad description that could also apply to a wide swath of other companies selling digital media and the devices to play it."

Parallels there with the Blackboard v Desire2Learn case but impossible to tell without having more details. Blackboard, a Washington DC company were recently awarded damages against Desire2Learn, an Ontario company, by a Texas jury.

In addition, given that Acacia has successfully enforced patents through the courts in the same ballpark, the Zapmedia folks might well find themselves on the receiving end of lawyerly letters from that general direction, expecially if they succeed in the Apple suit. In fact Acacia reportedly sued Apple over iTunes just last month.

EU approves Google takeover of DoubleClick

It seems the EU Commission has cleared the proposed acquisition of DoubleClick by Google.

"The European Commission has cleared under the EU Merger Regulation the proposed acquisition of the online advertising technology company DoubleClick by Google, both of the US. The Commission’s in-depth investigation, opened in November 2007 (see IP/07/1688), concluded that the transaction would be unlikely to have harmful effects on consumers, either in ad serving or in intermediation in online advertising markets. The Commission has therefore concluded that the transaction would not significantly impede effective competition within the European Economic Area (EEA) or a significant part of it."

Harmonising international approach to copyright exceptions and limitations

Bernt Hugenholtz and Ruth L. Okediji have just published their Open Society Institute (OSI) sponsored report on Conceiving an International Instrument on Limitations and Exceptions to Copyright. The 56 page study is based on contributions from some of the top intellectual property scholars in the world, including Jerome H. Reichman at Duke University and Pamela Samuelson of UC Berkeley.

They conclude:

"The task of developing a global approach to limitations and exceptions is one of the
major challenges facing the international copyright system today. At risk are fundamental
elements of the copyright system which were historically designed to require accountability
to goals and purposes far beyond individual economic gain. As new technologies challenge
copyright’s internal balance, and as the costs of globalization heighten the vital need for
innovation and knowledge dissemination, a multilateral instrument that can effectively
harness various national practices with regard to L&E’s, and that can provide a framework
for dynamic evaluation of how global copyright norms can be most effectively translated into
a credible system that appropriately values author and user rights is a necessity."

The full report emphasizes the public interest function of copyright law (cf. the interests of creators and business) :

"It is a well-established principle of copyright doctrine that the qualified grant of
proprietary rights over the fruits of creative enterprise is directed first and foremost at the
promotion of the public interest."

- and merits close attention.

Bush vetoes ban on waterboarding

So despite the acting head of the Justice Department's Office of Legal Counsel, Steven Bradbury, reportedly saying last month that waterboarding is no longer allowed under US law, it seems that President Bush does not agree.

"President Bush said yesterday he vetoed legislation that would ban the CIA from using harsh interrogation methods such as waterboarding to break suspected terrorists because it would end practices that have prevented attacks.

"The bill Congress sent me would take away one of the most valuable tools in the war on terror," Bush said in his weekly radio address taped for broadcast yesterday. "So today I vetoed it."

The bill provides guidelines for intelligence activities for the year and includes the interrogation requirement. It passed the House in December and the Senate last month.

"This is no time for Congress to abandon practices that have a proven track record of keeping America safe," the president said."

According to the Times Diplomatic Correspondent, Catherine Philp, John McCain is supporting the President's veto.

"John McCain, the Republican presidential candidate, who authored a law banning torture of detainees in American custody, surprised many by supporting the President's veto, arguing that imposing military rules on the CIA would deny it the use of many legitimate techniques.

Mr McCain has also said, however, that he would define waterboarding as torture, effectively outlawing it. Barack Obama and Hillary Clinton, the two Democratic candidates, are both supporters of increased measures banning coercive techniques although campaign commitments kept both of them from voting on this most recent Bill."

Fine per track proposed to increase from $150k to $1.5 million

A provision in the latest proposed US intellectual property bill, which would have increased statutory fines for online copyright infringement to a maximum of $1.5 million per track has been reportedly removed from the Prioritizing Resources and Organization for Intellectual Property (PRO IP) Act.

"A U.S. House of Representatives subcommittee has stripped out a provision in a copyright enforcement bill that would have increased fines for compilation CDs containing pirated music by 10 times or more.

Critics of the original version of the Prioritizing Resources and Organization for Intellectual Property (PRO IP) Act had complained that one provision would assess fines for each separate copyright work on a compilation work such as a CD, meaning the fines for a 10-song compilation CD would range from $7,500 to $1.5 million, instead of the current $750 to $150,000. But the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property voted on Thursday to approve an amendment that stripped out the controversial provision."

Interested parties will recall in the autumn of last year a woman who decided to face the RIAA in court was ordered by a jury to pay $222000 for infringing the copyright in 24 songs ($9250 per song). The RIAA at the time suggested she had got away lightly since it could have been $3.6 million at the maximum statutory rate of $150k per song.

Thanks to Michael Geist for the links.

Student may be sanctioned over FaceBook study group

It's a pity there aren't a few more details in this story as it appears that a student is possibly facing expulsion from college for organising an Facebook group for discussing assignments. There are a lot of shades of grey when dealing with possible plagiarism cases but throw the internet into the mix and it becomes a story the press like to recycle about mass armies of cheating students. For the student's and the university's sake I hope this one is a case of innocent and entirely appropriate mutual support between students. Should that be the situation, however, don't expect to see the outcome splashed about in the media - 'student found innocent of cheating on the net' doesn't make a good headline.

Diebold Accidentally Leaks Results Of 2008 Election Early

From the Onion:

Diebold Accidentally Leaks Results Of 2008 Election Early

Funny.

Which in translation means...

An attempt at translating my previous post into plain English:

Copyright law is complicated and affects loads of people, who we can divide into 3 main groups:

• creators
• business
• the public

For copyright to work, it has to be balanced enough for all three groups to benefit. But the

best system for creators ≠ best system for business ≠ best system for the public.

So we need a messy compromise, where no group will be completely happy but all three benefit. If we did come up with a compromise we would have no idea how it might work in practice because very few people have ever tried to measure, in a rigorous scholarly way, how copyright works in real life and who the winners and losers have been.

The American film industry was convinced in the early 1980s, for example, that the video cassette recorder would destroy their industry due to home taping. Yet in the end sales of video cassettes and DVDs became their biggest source of income.

Public debate about copyright tends to be dominated by unhelpful rhetoric, language and name-calling, like "pirates", which deliberately mixes up the interests of the three main groups - creators, business and the public. So proposed changes, for example, are often dressed up as being in the interests of artists/creators, whereas in reality they are about protecting business interests or public access, depending on which side the person calling for the change happens to be on.

The copyright system is going through a bit of an upheaval and lots of people want to change it to suit themselves.

Verdict: Not great on the plain English scale (and it needs more engaging narrative on wizards and goblins) but possibly not too bad for a first attempt?

Pratchett disapproves of lawsuit on Harry Potter Lexicon

It seems that Terry Pratchett disapproves of the latest Harry Potter lawsuit over the forthcoming printed version of the Harry Potter Lexicon website. He is quoted by the Independent as saying:

""In fantasy writing, accusations of copying are very difficult to make. You know who invented wizards? Who invented Goblins? If we were going to start paying royalties for nicking one another's ideas, we'd have all given our life savings to the Tolkien family a long time ago."

As I and others have said before, it is difficult to believe that JK Rowling, who has lavished such praise on the work of the folks behind the HP lexicon in the past, is behind the lawsuit. Creators, even those in the blockbuster category, rarely have complete control of the actions of commercial agents (and I use the term in the economics sense here to include publishers, film companies etc.) acting on their behalf. That's why it is useful, when thinking about the whole area of legal protection for creative and inventive endeavours, to separate out the three main sets of interests. Generally there are:

• the creators/inventors/artists/writers etc
  
• the commercial organisations engaged in finding commerically exploitable creative talent, production, aggregation and distribution (literary and talent agents, entertainment companies, manufacturers, broadcasters etc. - the whole gamut of commercial enterprises surrounding creative work) - maybe I should just call this the 'creativity business'
  
• the general public/consumers

Very often, in public debate, the interests of the first category (creators) are claimed to coincide exactly with the interests of the second (commercial agents); and the optimisation of the welfare of creators is assumed to result in a derivative automatic benefit for the third category (the public), in access to the resultant explosion of creative enterprise.

In reality, balance in intellectual property regulation is not quite as simple as getting the IP regulatory landscape right for the supposed coincident interests of creators and the creativity business. (Not that even this could really be considered to be 'simple', if you just think, as Terry Pratchett says, of the need for new creators to have capacity to build on existing creative/inventive works, meaning those works can't be locked behind legal or other protective fences either too securely or for too long).

With three sets of agents (again thinking of 'agents' in the way an economist uses the term), each category itself incorporating a huge and diverse range of subsets each with its own unique interests, we need to deal with the reality that an optimal regulatory system for creators, even if it was possible to define such a thing, will be different to that for business interests, which in turn will be different to that for the general public.

We also need to recognise that whatever system we settle on, therefore, will be sub-optimal for at least two of our three categories of economic agents - whatever happens it will be a messy compromise which cannot, by definition, please everybody. Yet for the system to work and creativity, commercial and public access to thrive, the welfare of all three sets of agents need to be strongly protected. You could say, as Mark Rogers and I did in a paper for the World Economics Journal a few years ago, that societal welfare delivered by the intellectual property system will equal the weighted sum of benefits derived from the system by creators, agents and consumers.

Yet even if we could work out a model economic optimisation formula for the three generic sets of agents, we currently would not have the empirical evidence to run through the model in order to help create a picture of what an optimal IP system might look like. So yet again we're back to the need for some fundamental empirical research to be done in the area, which could then be usefully employed to inform policy; and get out from under the usual trading of rhetoric that passes for public debate in this widely misunderstood and really important area of public policy.

By the way, I'm a fan of the writings of both Pratchett and Rowling.

NIH Public Access Policy - University Compliance

Mike Carroll has:

"written a White Paper on behalf of SPARC, Science Commons, and the Association of Research Libraries explaining the nature of the new copyright-related risk that NIH grantees face and identifying six options they have for managing that risk.

The White Paper, Complying with the National Institutes of Health Public Access Policy: Copyright Considerations and Options, is now available for download at http://www.arl.org/sparc/advocacy/nih/copyright.html."

Essential reading for open access scholars and policymaking staff in US universities.

Battle over Bush wiretapping may be nearing an end

From SiliconValley.com: Battle over wiretapping may be nearing an end

"The chairman of the House Intelligence Committee hinted Sunday that a bitter battle over an expired eavesdropping law may be moving toward a conclusion that gives phone companies the retroactive legal protections long sought by President Bush.

The chairman, Rep. Silvestre Reyes, D-Texas, said in an interview on CNN that the committee had been talking to the companies "because if we're going to give them blanket immunity, we want to know and understand what it is we're giving immunity for."

Reyes did not specify what provisions a House bill might contain. But his use of the words "blanket immunity" suggested that he might be moving toward a Senate bill, backed by Bush, that would protect phone companies that assisted in a federal program of wiretapping without warrants after the Sept. 11, 2001, terrorist attacks."

Patient database open to access by non-qualified NHS staff

From Computer Weekly:

"A document obtained by Computer Weekly under the Freedom of Information Act also provides evidence that NHS Connecting for Health - which runs part of the £12.4bn National Programme for IT [NPfIT] - has quietly decided to weaken assurances given to patients about the confidentiality of records.

Doctors are angry because they say that patients were given an assurance that non-clinical staff would be unable to access the national summary care record database which is being trialled at NHS trusts in various parts of England."

Proudly spamming OU courses

Jim Groom and Tony Hirst have been building on each others tinkering. This is terrific.

"There has been a bit of excitement about the possibilities for pushing the uses of RSS towards a mythical eduglu as of late. Brian posted about it here and got some great feedback, soon after D’Arcy Norman and Bill Fitzgerald ramped up their work with Drupal. Then there was David’ Wileys re-publishing of his course on WordPress.com, and Brian (again) frames the implications beautifully, and then Stephen Downes uses this example to point towards Tony Hirst’s Disaggregation of MIT OCW. In short, an amazing distributed thread to follow.

So while I was looking at Tony Hirst’s work with MIT’s Open CourseWare, he must have been leaving a comment pointing to a series of feeds on the Open Learn OER site. Additionally, he suggested that there isn’t any reason why these feeds couldn’t be pulled into a blog rather neatly. And you know what, he couldn’t have been more right!

I gave it a shot on a WordPress Multi-User installation I keep around for just these sorts of things. I pulled the Open University courses feeds into individual blogs using Wp-o-Matic, a tried and true spamblogging plugin. And I am pretty excited by the results. (As an aside, I find great pleasure in re-purposing the wicked tools of spammers to make re-publishing open educational resources that much easier.)

[...]

This was a pretty amazing experiment for me because it illustrates just how much I learn from reading blogs on a daily basis. Ideas happen in a series of relations, and I so thoroughly enjoy taking other people’s genius and testing it out. When I saw the Goya class get pulled in successfully in just over a minute, I started to realize just how powerful these open resources can be once they are freed from their repositories. What is stopping K-12s and universities from setting up WPMu installations (or Drupal, or what have you) and pulling these amazing resources in? Or even pushing them out themselves? Another question that needs to be asked is how many of the other open resources out there have the stellar RSS feeds these OpenLearn OERs do?"

This is amazing stuff. The power of the net and bright people...

Wiggin report: 70% of P2P Users Would Stop if Warned by ISP

Via Slashdot: '70% of P2P Users Would Stop if Warned by ISP'

""As the UK considers a three strikes policy to fight copyright infringement, a new survey reports that 70% of UK broadband users would stop using P2P if they received a warning from their ISP. 'Wiggin commissioned the 2008 Digital Entertainment Survey, which found that 70 percent of all people polled said they would stop illegally sharing files if their ISP notified them in some way that it had detected the practice. When broken down by age group, an unexpected trend emerges: teenagers are generally more likely to change their behavior than older Internet users.'"

EBay Ends Patent Suit With MercExchange

It seems that the long running eBay v MercExhange case is over. From AP:

"EBay Inc. has settled a seven-year patent dispute with MercExchange LLC that prompted an important intellectual-property ruling from the U.S. Supreme Court.

The online auction company said in a statement Thursday that it bought the three MercExchange patents it had been accused of violating. The price was not disclosed; eBay said the figure would not materially affect its financial results...

EBay said the settlement would end all claims by MercExchange. In addition to the three patents involved in the case, eBay said it would license other technologies from MercExchange.

EBay spokeswoman Kim Rubey said she could not elaborate.

"

James Boyle in the FT on copyright terms

James Boyle has, as ever, a cogently argued piece in the FT on the question of the EU database directive, copyright terms and the absence of empirical evidence in intellectual property policy making generally.

"Readers of these columns have heard me lament in the past about the fact that intellectual property policy is an “evidence-free zone”. It is the trickiest of regulatory matters to get the right level of intellectual property protection – giving incentives to creators and distributors, yet not overly burdening future innovators or imposing unnecessary monopoly prices on consumers. Getting this balance right should be a matter of empiricism, not faith. We do, for example, have good evidence about what kind of policies on database rights and on state generated data – such as maps, traffic and weather information – actually work best. In each case, the European Union has picked a plausible position – stronger rights will mean more production and innovation – and seen it convincingly falsified through empirical analysis.The same is true with the length of our copyright term. Brilliant economists, including five Nobel laureates, have pointed out that our current copyright terms are far too long. We extend copyright long beyond the time necessary to provide incentives to create and distribute...

At the end of last year, I did note a ray of hope. In two cases, both in Europe, policymakers had actually looked at evidence in order to decide what to do! The Commission studied the EU database market to see if the database right was doing any good. It was not. The UK government commissioned the Gowers Review of intellectual property policy to see whether we should extend the term of sound recordings retrospectively...

They came to the same conclusion every single disinterested academic policy review has come to: “Policymakers should adopt the principle that the term and scope of protection for IP rights should not be altered retrospectively.”

But it was not to be. Faced with a tidal wave of pressure by publishers of databases, who liked their monopolies very much, thank you, the Commission shamefully gave in and left the directive in place. While the British government showed more spine on sound recordings, the European Commission has now announced that it thinks the copyright over sound recordings should be extended to 95 years!

Mr McCreevy's harmonisation argument – appropriate given the subject – is worth thinking through. Political scientists tell us that there are types of issues where we can almost guarantee that the state will get things wrong; cases where the benefits of some proposed policy go to a small and well-organised lobby of repeat players while the much larger costs fall on a wider and less well informed public. That is why it is so important to have policies that are justified with facts rather than faith."