Lectures on Internet Law (CSM04) Mrs. Tuğba Taşkaya Temizel Prof. Khurshid Ahmad Department of...

Lectures on Internet Law(CSM04)

Mrs. Tuğba Taşkaya TemizelProf. Khurshid Ahmad

Department of ComputingSchool of Electronics & Physical Sciences

November 2005

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Course Outline- Internet Law

Cyberspace, cyberlaw and the clash of laws The key players Internet and Intellectual Property Internet –Telecomms and Broadcast Regulation Defamation Trademarks Domain Name Registration Copyrights Online Service Agreements Click-Wrap Licences Computer Fraud and Abuse Patent Law

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Key ReferencesBooks

Bainbridge, David I. (2000). Introduction to Computer Law (4th Edition). Harlow (England): Longman. Edwards, Lillian., & Wealde, Charlotte. (2000). Law and the Internet: A Framework for Electronic Commerce. Oxford & Portland: Hart Publishing. Lloyd, Ian J. (1977). Information Technology Law. London:Butterworth. Smedinghoff, Thomas, J. (1996) (Editor). Online Law: The Software Publishers Association’s Legal Guide to Doing Business on the Internet. Reading (Mass): Addison-Wesley Developers Press.

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Key ReferencesLinks

Internet Library of Law and Court Decisions http://www.phillipsnizer.com/library/ An Introduction to Intellectual Property http://www.law.uconn.

edu/homes/swilf/ip/index.htm Business, Internet, e-Commerce & Domain Name Law

http://www.keytlaw.com/ Intellectual Property in Cyberspace

http://cyber.law.harvard.edu/property00/library/library.html .

Copyright and Fair Usehttp://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html

FindLaw Professionals: Summaries of Lawhttp://profs.lp.findlaw.com/

This presentation was prepared using above links and resources.

http://www.phillipsnizer.com/library/



http://www.law.uconn.edu/homes/swilf/ip/index.htm










http://www.keytlaw.com/



http://cyber.law.harvard.edu/property00/library/library.html

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/index.html







http://profs.lp.findlaw.com/

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Glossary of Legal Terms

Allege : To state without proof or before proving Bona Fide : characterized by good faith and lack of fraud or deceit Chattel : An article of movable personal property Defendant : The party against which an action is brought. Dismiss: To put (a claim or action) out of court without further hearing Enact : To make into law Infringe :To exceed the limits of; violate Injunction: A court order prohibiting a party from a specific course of

action Jurisdiction :The right and power to interpret and apply the law Lawsuit : An action brought in a court for the purpose of seeking relief

from or remedy for an alleged wrongFor more legal definitions, please refer to

http://www.lawyers.com/legal_topics/glossary/index.php

http://www.dictionary.com

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Glossary of Legal Terms

Legislation : A proposed or enacted law or group of laws. Merits : A party's strict legal rights, excluding jurisdictional, personal, or

technical aspects Plaintiff : A person who brings an action in a court of law Squatter : a person who occupies real property without a claim of right or

title Statute : An established law or rule, as of a corporation Sue : To institute legal proceedings; bring suit Trespass : To commit an unlawful injury to the person, property,

or rights of another, with actual or implied force or violence, especially to enter onto another's land wrongfully

For more legal definitions, please refer to http://www.lawyers.com/legal_topics/glossary/index.php

http://www.dictionary.com

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Copyrights

A copyright is a form of protection provided by the laws of the United States and most other countries to those who create what the law refers to as “original works of authorship”. It is, in essence, a grant of certain exclusive rights to authors in order to allow them commercially to exploit their works.

Whether in digital form or in print, most information is automatically protected by copyright from the moment it is created.

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CopyrightsThe Berne Convention

The Berne Convention, is the principle copyright treaty for the Protection of

Literary and Artistic Works, which was signed by 114 countries in July 1995.

was first adopted at Berne in 1886. extends the protection of the countries’ copyright law to

foreigners whose works are infringed within the borders of their country.This protection must last for at least the life of the author plus 50 years, and must be automatic without the need for the author to take any legal steps to preserve the copyright.

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CopyrightsCopyrightable Works

Literary Works : text-based works such as books, plays Databases : collections of data Characters : fictional characters such as Superman Musical Works : words, music, musical instrument digital interface (MIDI) Sound Recordings : copyrightable regardless of the nature of the sounds

recorded. Photographs and Still Images : advertisements, cartoons, charts, comic

strips … (GIF images of any these items are also copyrightable) Motion Pictures and Other Audiovisual Works : film, videogame… Software Compilations and Derivative Works : catalogs, directories, anthologies … Multimedia Works

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CopyrightsUncopyrightable Works

Pure data such as names, addresses Facts Ideas Works prepared by federal government officers

and employees Federal statutes (the Copyright Act, for example)

and regulations Words, phrases, and titles

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CopyrightsCase Study

Discuss whether Tesco can register the “Every little helps” phrase .

See UK Copyright Service http://www.copyrightservice.co.uk/assessment

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Discuss whether Tesco can register the “Every little helps” phrase .

See UK Copyright Service http://www.copyrightservice.co.uk/assessment

Names, titles and phrases do not qualify for copyright protection. You may however still be able to register a logo which combines the words with

design elements, as this would be eligible for copyright protection as a design work, (the actual words themselves are not covered).

Names, titles and phrases do not qualify for copyright protection. You may however still be able to register a logo which combines the words with

design elements, as this would be eligible for copyright protection as a design work, (the actual words themselves are not covered).

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CopyrightsCopyright Infringement

Anyone who violates any of the exclusive rights of a copyright owner is an infringer.

Copyright infringement is determined without regard to the intent or the state of mind of the infringer. Even those who infringe a copyright innocently are liable to the copyright owner. The making of even a single unauthorised copy may constitute an infringement.

A copyright owner can recover actual or, in some cases, statutory damages from an infringer.

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Discuss whether the following cases will infringe the copyrights: To make an archival copy of your software for

backup purposes To rent your legal copy of a film to people

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Discuss whether the following cases will infringe the copyrights: To make an archival copy of your software for

backup purposes : no infringement To rent your legal copy of a film to people: if

there is no notice regarding prohibiting renting, then it is legal. [In 1979 Universal City Studios, Inc. et al. v. Sony Corporation of America Inc. et al. (often called "The Betamax Case") ]

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CopyrightsImplied Licences

An implied license is one which though not expressly given, may be presumed from the acts of the party having a right to give it. E-mail messages: By sending the message, the sender arguably

consents to the necessary copying. When a user views a Web page, the content of the Web page is

copied onto the RAM of the user’s computer. Since this conduct constitutes making a ‘copy’, and thus constitutes at least a technical copyright violation, it must be presumed that the author who posted material on the Web site granted an implied license to make such copies.

http://legal-dictionary.thefreedictionary.com/License

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CopyrightsPublic Domain

Copyrightable information is in the public domain generally only if, The original copyright has expired (Copyright

protection lasts for the life of the author plus 50 years) The copyright has been abandoned by the

copyright holder, or The work was created by the federal

government

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CopyrightsFirst-Sale Doctrine

The Copyright Act gives the copyright owner the exclusive right to distribute the copyrighted work. After the copyright owner has sold a particular copy of the work (i.e. made the ‘first sale’ of that copy), it has no right to control further disposition of that copy by the purchaser. This principle is known as the first-sale doctrine.

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Case Study

Decide whether the following cases may infringe the copyrights: To sell your ticket bought for a concert to

anyone else. To sell the software you bought. To sell your archival copy of the software to

be used when the original package fails or is destroyed.

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Tickets: Example Live 8 concert The reselling of charity concert tickets is

not illegal under UK law, BUT

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CopyrightsFair Use

The "fair use" of a copyrighted work, including use for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. Copyright owners are, by law, deemed to consent to fair use of their works by others. The Copyright Act does not define fair use. Instead, whether a use is fair use is determined by balancing these factors: The purpose and character of the use. The nature of the copyrighted work. The amount and substantiality of the portion used in relation to the

copyrighted work as a whole. The effect of the use on the potential market for, or value of, the

copyrighted work.

http://profs.lp.findlaw.com/copyright/copyright_6.html

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CopyrightsFair Use

The purpose and character of the use:Courts consider two factors:a) Whether the copying is for a noncommercial use, as opposed

to a commercial purposeb) Whether the copying involves a transformative use of the

originalThe transformative use is one in which the copied material is incorporated into another work that has a different purpose or different character from that of the original, such as work that adds new expression, meaning, or message to the material copied from the original work. Copying in an attempt to duplicate the original and multiply the number of copies is not transformative use

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CopyrightsFair Use

Purpose and character of use: Infinity Broadcasting Corp. v. Kirkwood (1998): where the courts concluded that retransmission of radio broadcast over telephone lines was not deemed transformative;

Worldwide Church of God v. Philadelphia Church of God (2000): where the courts noted that copying a religious book to create a new book for use by a different church was not transformative; Nunez V. Caribbean International News Corp. (2000): Copying a photograph that was intended for use in a modelling portfolio and using it instead in a news article was deemed transformative by the courts. The use of a photograph in the newspaper transformed it into news, thereby creating a new meaning or purpose for the work.

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CopyrightsFair Use

@cooey

Transforming news articles into artSarah Lucas (Shine On 1991) – Tate Modern Museum

“Love Letters Building” in Berlin

BBC news article

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CopyrightsFair Use

Purpose and character of use: Sony Computer Entertainment America Inc. v. Bleem (2000): Bleem’s use of ‘screen shots’ from Sony in Bleem’s advertisement was fair use as it increased purchasing public’s knowledge whilst Sony incurred very little loss of integrity.

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CopyrightsFair Use

Purpose and character of use:Los Angeles News Serv. v. Reuters Television Int'l Ltd.. 149 F.3d 987 (9th Cir. 1998): rejecting the fair use defence where television news agencies copied copyrighted news footage and retransmitted it to news organizations

Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1530-31 (S.D.N.Y. 1991) see generally Leval, supra, at 1111: repetition of copyrighted material that "merely repackages or republishes the original" is unlikely to be deemed a fair use.

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CopyrightsFair Use

The nature of the copyrighted work:Courts consider two factors:

a) Whether the copyrighted work is published or unpublished

b) Whether the copyrighted work is factual or creative.

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CopyrightsFair Use

The amount and substantiality of the portion used:The greater the portion of a work that is copied, the less likely it is that the copying will be considered fair use.In 1984, the Supreme Court recognised that videotaping of television programs for home use was not transformative and took the entirety of the copyrighted works, and acknowledged that these facts argued against a finding of fair use. However, the Court justified a finding of fair use by the fact that the copying,

1) was private2) was noncommercial

3) was done to permit the consumer one viewing at a convenient hour of copyrighted material that was offered to him free of charge

4) caused no appreciable loss of revenue to the copyright owner

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CopyrightsFair Use

The effect of the use on the potential market for the copyrighted work:If copying a portion of another’s copyrighted work has no demonstrable effect upon the potential market for, or the value of, the copyrighted work, it may be considered a fair use.

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Decide in which cases copyright infringement occurs. Give your reasons.

You post a message to a discussion site, and another person quotes your message.

A writer wrote a travel book after s/he spends many years in abroad. Later, someone uses some of the facts written in the book elsewhere.

A website publishes a model’s pictures, which were taken for a magazine portfolio, without her permission.

Someone copied the telephone directory and rearranged the information into phone number order.

A browser displays a site to you, while determining whether your computer’s memory contains a copy (or cache) of the requested site. If it does, then the Web browser displays that copy within seconds. If the computer’s memory doesn’t have a copy of this Web site, then it retrieves a copy, simultaneously storing that copy of the site into the computer’s RAM.

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CopyrightsType of Permissions

Assignment: You give up the ownership of copyright. E.g. the sale of a house

Licence: You temporarily transfer your rights but retain the ownership of copyright. E.g. leasing a house Exclusive licence: Only the licencee has the right to use the

work in the ways specified in the licence. Everybody else, including the copyright owner is prevented using the work in those ways.

Non-exclusive licence: The copyright owner retains the right to use the work and may continue to grant similar licences to others who wish to use the work in the same way.

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CopyMonsieur has recently asked Skippy the eco-warrior to produce a compilation of eco-poems, plays and paintings with environmental themes for the last century (1900-99). Skippy selects 3 poems of his mate Jim, who is an eco-poet of considerable standing. Skippy has also selected a play by Joe, who died 20 years ago, about environmental destruction of rain forests in the 1960s. Skippy’s friend, Jenny, is happy for Skippy to use a TV documentary she produced, about the effect of motorway construction produced by Cynical TV, for his compilation. Jenny has also found the earliest novel on an ecological theme by her great grandfather, Jerry, who died about 90 years ago and Skippy will digitise the novel for his compilation as well.

Describe what kinds of licences and permission CopyMonsieur will need from Skippy, Jim, Joe, Jenny and Jerry to comply with

the UK Copyright Laws.

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Describe the kinds of licences and permission CopyMonsieur will need from Skippy, Jim, Joe, Jenny and Jerry to comply with the

UK Copyright Laws.

A licence from Jim and from Joe’s estate (as he is now deceased) allowing for the copying, performance and issue to the public of their poems;An assignment (or exclusive licence) from Jenny in respect of the compilation copyright and the material she has written;A licence from Cynical TV in respect of the broadcast; andAn exclusive licence from Jim in respect of his live performance (this is protected as a right in a performance, a right analogous to copyright).

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Online Service Agreements

An online contract is a contract created wholly or in part through communications over computer networks.

Assent by either words or conduct is mandatory.

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Online Service Agreements Shrink Wrap Licences:

Shrinkwrap used in the licensing of tangible forms of software sold in packages.

Frequently, such packaging states that software use is subject to the terms of an enclosed license agreement that permits buyers objecting to such terms to return the software for a refund. Many courts have found that using and failing to return such software are sufficient acts of assent to bind the user to the license terms.

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Online Service Agreements Click Wrap Licences:

In the case of a shrinkwrap licence the user has to break a seal that is on the clear packaging of a software product he or she has bought in order to access the contents of the package. Once the seal is broken the user is expected to use the enclosed computer program after encountering notice of the existence of governing license terms. The 2nd Circuit Court noted that the breaking of the seal is regarded by ‘some courts to constitute assent to those terms in the context of tangible software’ and the Court cited the 7th Circuit Court earlier.

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The term clickwrap, a kind of online software licence agreement, has evolved from the term shrinkwrap used in the licensing of tangible forms of software sold in packages.

Clickwrap is essentially an icon on a web page which is used to present “ the user with a message on his or her computer screen, requiring that the user manifest his or her assent to the terms of the license agreement by clicking on an icon. The product cannot be obtained or used unless and until the icon is clicked."

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Therefore by analogy, clicking on a web-page's clickwrap button after receiving notice of the existence of license terms has been held by some courts to manifest an Internet user's assent to terms governing the use of downloadable intangible software, see, e.g., Hotmail Corp. v. Van$ Money Pie Inc., 47 U.S.P.Q.2d 1020, 1025 (N.D. Cal. 1998).

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Click Wrap Licences:Specht and others v Netscape & AOL

SmartDownload is a program that makes it easier for its users to download files from the Internet

The plaintiffs clicked the “Download” box to obtain the software and proceeded to download the software on to the hard drives of their computers.

No reference to license terms appeared at the "Download" box.

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The sole reference on this page to the License Agreement appears in text that is visible only if a visitor scrolls down through the page to the next screen.

The plaintiffs alleged that the defendant invaded the plaintiffs’ privacy by secretly disseminating personal information when the plaintiff used the software supplied by the defendant SmartDownload

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The Second Circuit held that under these circumstances, plaintiffs were not bound by the terms of the license agreement because they did not receive sufficient notice that their act of clicking on the "download" button, or using the software, would constitute an assent to be bound by the terms of the license agreement. Said the court:

A consumer's clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms … (citations omitted). California's common law is clear that "an offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he is unaware, contained in a document whose contractual nature is not obvious." (citations omitted).

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Online Service AgreementsCase Study

A computer can generate an offer. For example, an inventory system can calculate when supplies are low, and automatically generate an electronic purchase order to the vendor. Would such an order be a binding offer?

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Computer Fraud and Abuse Act (§ 1030)

(Based on the 1996 Act. The new Act was released on 6th August 2004)(a) Whoever-- …(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—…

(C) information from any protected computer if the conduct involved an interstate or foreign communication;…(5)(C)intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage;shall be punished as provided in subsection (c) of this section.

http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001030----000-.html

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(c) The punishment for an offense under subsection (a) or (b) of this section is– …

(2) (A) a fine under this title or imprisonment for not more than one year, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(5)(C), or (a)(6) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph; and

(2) (B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under subsection (a)(2), if--

(i) the offense was committed for purposes of commercial advantage or private financial gain;

(ii) the offense was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State; or

(iii) the value of the information obtained exceeds $5,000;

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(e) As used in this section--

(8) the term "damage" means any impairment to the integrity or availability of data, a program, a system, or information, that--

(A) causes loss aggregating at least $5,000 in value during any 1-year period to one or more individuals;

(B) modifies or impairs, or potentially modifies or impairs, the medical examination, diagnosis, treatment, or care of one or more individuals;

(C) causes physical injury to any person; or

(D) threatens public health or safety; …

http://assembler.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001030----000-.html

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Ticketmaster (the Plaintiff) have filed a complaint against Tickets.com (the Defendant) in the U.S. District Court C.D.

California 2000. The Plaintiffs made the First Amended Complaint (FAC)

against the Defendant, MP3.com, including the breach of contract, misappropriation, trespass, copyright infringement,

unjust enrichment, federal unfair competition and reverse passing off, false advertising, state unfair business

practices, and interference with business advantage.Court cases:

[2000]http://gsulaw.gsu.edu/lawand/papers/su03/darden_thorpe/54%20U.S.P.Q.2d%201344.html

[2003]http://gsulaw.gsu.edu/lawand/papers/su03/darden_thorpe/2003%20WL%2021406289.html

Copyrights & Clip Wrap Licences Case Study – Plaintiffs:Ticketmaster Corp. Defendant: Tickets.com Inc.

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FACTS: Ticketmaster operates to allow

customers to purchase tickets to various events (concerts, ball games, etc.) through an internet connection with its customers.

However, the customer need not view the terms and conditions to proceed straight to the event page which interests him.

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FACTS: Tickets also operates a web site

(Tickets.Com) which performs a somewhat different ticketing service. While Tickets does sell some tickets to certain events on its own, it also provides information as to where and how tickets which it does not sell may be purchased.

Where the exclusive ticket broker is Ticketmaster, and the customer clicks on "Buy this ticket from another on-line ticketing company", the customer is instantly transferred to the interior web page of Ticketmaster (bypassing the home page) for the the particular event in question, where the customer may buy the tickets (from Ticketmaster, not Tickets) on-line.

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FACTS: Tickets employed an electronic program

called a "spider" or "crawler" to review the internal web pages (available to the public) of Ticketmaster. The "spider" "crawled" through the internal web pages to Ticketmaster and electronically extracted the electronic information from which the web page is shown on the user's computer. The spider temporarily loaded this electronic information into the Random Access Memory ("RAM") of Ticket's computers.

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Carnival Cruise Lines '91 499 U.S. 585, 113 L.Ed.2d 622 :Facts: The Shutes went on a cruise. On the ticket, there was a forum selection clause that said any litigation related to the cruise must be tried in Florida. Mrs. Shute slipped on the ship and hurt herself. The Shutes sued in Washington and Carnival moved for summary judgment due to the forum selection clause. At trial, the Shutes conceded that they had notice of the forum selection clause. Rule: Courts have the responsibility to determine whether forum selection clauses in form passage contracts are fair.Analysis: The Court says that the ticket contract was a routine commercial passage contract. It was not negotiated, and the parties did not have equal bargaining power.[http://lawschool.mikeshecket.com/civpro/carnivalcruiselinesincvshute.html]

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Pollstar v. Gigmania Ltd. (United States District Court, California, 2000 CIV-F-00-5671 REC SMS)Facts: Pollstar alleges that it created and developed up-to-the-day time sensitive concert information that was published daily on its web site-- www.pollstar.com--.By accessing the pollstar.com web site, an Internet user can download and use the timely and up-to-date concert information pursuant to conditions of a license agreement. Pollstar alleges that Gigmania downloaded pollstar.com from the Internet and placed information that is copied from the pollstar.com web site on its web site at www.gigmania.com. The license agreement states in pertinent part: License Agreement: Any person using information from this web site hereby agrees to the following terms: 1. All documents and information may only be used for informational purposes. 2. All documents and information may only be used for non-commercial purposes. 3. Any copy of these documents or information or portions thereof must include the copyright notice and this License Agreement. Any duplication, transmission by any method, or storage in an information retrieval system of any part of this publication for purposes other than those stated above is strictly prohibited without the specific written permission of the publisher. In the present case, Pollstar alleges that users of the concert information are bound by the license agreement. This license agreement is not set forth on the homepage but is on a different web page that is linked to the homepage. However, the visitor is alerted to the fact that "use is subject to license agreement" because of the notice in small gray print on gray background.

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Pollstar v. Gigmania Ltd. (United States District Court, California, 2000 CIV-F-00-5671 REC SMS)Rule and Analysis: Since the text is not underlined, a common Internet practice to show an active link, many users presumably are not aware that the license agreement is linked to the homepage. In addition, the homepage also has small blue text which when clicked on, does not link to another page. This may confuse visitors who may then think that all colored small text, regardless of color, do not link the homepage to a different web page.

While the court agrees with Gigmania that the user is not immediately confronted with the notice of the license agreement, this does not dispose of Pollstar's breach of contract claim. The court hesitates to declare the invalidity and unenforceability of the browse wrap license agreement at this time. Taking into consideration the examples provided by the Seventh Circuit--showing that people sometimes enter into a contract by using a service without first seeing the terms--the browser wrap license agreement may be arguably valid and enforceable.

http://gsulaw.gsu.edu/lawand/papers/su03/darden_thorpe/170%20F.Supp.2d%20974.html

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Discuss whether the Plaintiff is right in the following claims: Breach of contract

Link your discussion with the following cases: Carnival Cruise Lines '91 499 U.S. 585, 113 L.Ed.2d 622 : Pollstar v. Gigmania Ltd. (United States District Court, California, 2000 CIV-

F-00-5671 REC SMS) Specht and others v Netscape & AOL (United States District Court, Southern

District of New York, 2002) Copyrights

The momentary resting in the Tickets computers of all of the electronic signals

Copyrightable material Hyperlinking

Passing off, reverse passing off Trespass to chattels

Lectures on Internet Law (CSM04) Mrs. Tuğba Taşkaya Temizel Prof. Khurshid Ahmad Department of...

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