Saturday, May 27, 2017

Sunday, April 09, 2017

Metatags and Google advertisements found to be trademark infringements

In an appeal decision handed down on Friday, the Full Court of the Federal Court of Australia has affirmed a trial judge's decision that metatags and Google advertisements were trademark infringements.

The case is Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2017] FCAFC 56.

The case concerned a real estate agent advertising short term accommodation, using the name of a nearby Accor hotel (which was a registered trademark) to attract Internet users to the real estate agent's booking website.

The court confirmed findings of the trial judge that the following were trademark uses and trademark infringements:  use of of the trademark in the domain name, use in metatags for the website, use in headings for the website, use in email addresses, and use in Google advertisements.

Monday, March 27, 2017

First Amendment and Social Media

Social media and First Amendment issues were debated in oral argument before the US Supreme Court in Packingham v. North Carolina.

See:  http://www.scotusblog.com/case-files/cases/packingham-v-north-carolina/

Issue:  Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

In oral argument on 27 February 2017, Justice Kennedy drew an analogy between social media and the public square.  Justice Ginsburg said restricting access to social media would mean being cut off from a very large part of the marketplace of ideas.  The First Amendment includes not only the right to speak, but the right to receive information.

Sunday, March 26, 2017

It is hard to control where your ads will appear online

Advertisers are leaving YouTube, because their advertisements are being placed in close proximity to hate speech and other offensive material.

See NY Times story, Perils of Online Ads

Saturday, March 04, 2017

Book - The Last Days of Night

An interesting book, a novel, about a new lawyer in New York, Paul Cravath, who founded one of NY's best law firms, and his representation of Westinghouse against Edison in patent disputes.  The Last Days of Night.  It shows that patent disputes have been going on for 100 years whenever new technology suddenly blossoms.

Monday, January 16, 2017

GST Tax obligations for non-Australian offshore sellers

Recently, the Australian Taxation Office released a draft GST ruling (GSTR 2016/D1) to assist foreign suppliers of digital and other intangible products to determine when they will be liable to Australian GST (an indirect tax like VAT) on supplies they make to Australian consumers.
The draft GST ruling explains what steps suppliers should take to collect evidence to establish whether or not the recipient of a supply is an Australian consumer.

Friday, January 13, 2017

Assaults on Privacy in the USA

A good article in Harvard Magazine titled "How surveillance changes people's behaviour: assaults on privacy in America."  See article here.

Wednesday, January 11, 2017

EU ePrivacy

On 10 January 2017, the European Commission published a Proposal for a Regulation could have significant implications for Internet-based services and technologies.
The Proposal seeks to revise the current EU ePrivacy Directive.  It creates strict new rules regarding confidentiality of electronic communications, including content and metadata. In addition, the Proposal amends the current rules on the use of cookies and similar technologies, and direct marketing. The rules apply to EU and non-EU companies providing services in the EU, and are backed up by significant enforcement powers—fines of up to four percent of a company's global turnover.
The Proposal is the next major step in the EU's review of its data protection legal framework and follows the adoption of the General Data Protection Regulation (GDPR) in April 2016.

Friday, December 16, 2016

United States Copyright Office Releases Report on Software-Enabled Consumer Products

Yesterday, the U.S. Copyright Office released a report titled "Software-Enabled Consumer Products."

The report follows a year-long process, during which the Office studied how copyright law interacts with software-enabled consumer products, from cars, to refrigerators, to mobile phones, to thermostats and the like. 

The report explores the various legal doctrines that apply to this subset of software, which is increasingly present in everyday life, including important copyright doctrines such as fair use, merger, scènes à faire, first sale, and the section 117 exemptions. The report focuses on specific issues raised in the public comments and hearings, including how copyright law affects licensing, resale, repair and tinkering, security research and interoperability.

The Copyright Office's report found that current legal doctrines support a wide range of legitimate uses of the embedded software in consumer products while also recognizing the importance of copyright protection to the creation and distribution of innovative products. The report does not recommend legislative changes at this time.

The full report and executive summary are available on the Copyright Office's website at http://copyright.gov/policy/software/.

Thursday, October 13, 2016

Apple Store Privacy Issues

Do you trust Apple Store employees when they take away your phone to fix it?

Staff in a Brisbane Apple Store reportedly lifted photos from some Apple customers' iPhones and took more than 100 close-up and explicit photos of female customers and staff without their knowledge.

This raises both privacy and copyright issues.  It is also creepy.

See Brisbane Times

Monday, April 25, 2016

Swipes per minute

In one minute, there are 4,166,667 Facebook likes, 347,222 tweets, 590,279 Tinder swipes and 284,722 Snapchat snaps.  See BRG

Sunday, April 03, 2016

Revenge Porn

A story in the NY Times about a revenge porn civil case, and whether the decision by prosecutors to drop a corresponding criminal case will have any impact on the civil case.

"In recent years, federal prosecutors in Los Angeles have earned a reputation for being particularly aggressive in pursuing cases against both former boyfriends and hackers selling unauthorized sexually explicit videos to websites. One notable case was the successful prosecution of Hunter Moore, who ran a now-defunct website that specialized in posting revenge porn videos that were stolen from people’s computers and posted without their permission.

The decision to drop the charges against Mr. Elam may illustrate the difficulties in pursuing such cases because they require a jury not to hold the victim partly responsible for creating the sexually explicit images in the first place and either sharing them with a former partner or storing them on a cellphone."

See NY Times

Sunday, March 13, 2016

Saturday, March 12, 2016

Consequential Loss After Hacking Decision from the USA

An interesting decision from the United States (11th Circuit appeals court) in Silvertop Systems -- decision here.

There is an interesting discussion of consequential loss, that starts at the heading "LMT's Counterclaim for Breach of Contract"

Facts were these:

·         Supplier (Silverpop) provided an email marketing service.  Customers loaded up email addresses and Supplier would send out mass emails in a form specified by the customer to addresses on the list.
·         Hackers got into the Supplier’s system and got access to several customer’s marketing lists, including LMT’s list.
·         The contract between Silverpop and LMT had a confidentiality clause (obligation to protect the list against unauthorised disclosure to third parties) and an exclusion of consequential loss.
·         Amongst the claims and counterclaims, was a claim from LMT that Silverpop had breached the confidentiality obligation and that the damage suffered by LMT was the sale value of the marketing list, which they said was now worthless.

This is what the court decided – assuming it was correct that the value of the marketing list was now zero, that was a consequential loss.  The court discussed the difference between general damages and consequential damages (which is remarkably similar to the old English decision of Hadley v Baxendale).  The direct loss which would have been recoverable by LMT if there had been a breach of the confidentiality obligation was the loss of the value of the service (but that is not what LMT claimed).

Friday, March 11, 2016

Discount Accommodation and Affiliate Payments

Online travel agents make commissions of approximately 15% to 25% of the price of the accommodation booked.  Some share that commission with travellers through loyalty programs.  Others give discounts upfront, or share some of the commission with "affiliates" who refer other customers.  One such service is JetSetter, who has discount quality accommodation, and shares 5% with the guest and 5% with the referring affiliate.  See Jetsetter.  (I use this service by the way, and it is good.   I have stayed in luxury accommodation at great prices.)

Another good referral program is OFX (OzForex) which is an international wire money transfer business.  It is in competition with Western Union, and is much better value.  See OFX website.

Wednesday, March 09, 2016

Echo from Amazon

The relatively new Echo device from Amazon is getting great press.  It will be interesting to see what legal issues arise from a voice controlled device in your home that connects with other systems.

There is also the new Amazon Tap.

Any why is Amazon opening physical book stores?


 

Tuesday, March 01, 2016

Monday, February 29, 2016

Apple v The Government

If you are following the Apple v US Government legal process over the FBI request to brute force break of the passcode on Syed Farook’s work phone, the link below has a good summary and also a link to the 65 page motion.

Monday, January 04, 2016

Copyright in Instagram Photos

See this article regarding a copyright claim in respect of Instagram photos.

Story here.

I have met a number of people who are earning good money promoting products on Instagram and on blogs.

Monday, December 28, 2015

Business Method Patents In Australia

After a long delay, the Australian Federal Court (Appeals Division) has finally decided the case of Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177.  This is an appeal from an appeal from a decision by the Commissioner of Patents not to grant a patent to a method and system for computerised collection of information relevant to assessment of a person’s competency for a recognised qualification standard.

The case considered whether this invention was patentable subject matter in Australia.

The Court decided that this invention was not patentable subject matter in Australian.

"A claimed invention must be examined to ascertain whether it is in substance a scheme or plan or whether it can broadly be described as an improvement in computer technology. The basis for the analysis starts with the fact that a business method, or mere scheme, is not, per se, patentable. The fact that it is a scheme or business method does not exclude it from properly being the subject of letters patent, but it must be more than that. There must be more than an abstract idea; it must involve the creation of an artificial state of affairs where the computer is integral to the invention, rather than a mere tool in which the invention is performed. Where the claimed invention is to a computerised business method, the invention must lie in that computerisation. It is not a patentable invention simply to “put” a business method “into” a computer to implement the business method using the computer for its well- known and understood functions.

Is the mere implementation of an abstract idea in a well-known machine sufficient to render patentable subject matter? Is the artificial effect that arises, because information is stored in RAM and there is communication over the Internet or wifi, sufficient? Does any physical effect give rise to a manner of manufacture? Are the mere presence of an artificial effect and economic utility, without more, sufficient to determine manner of manufacture?

... it is apparent that, other than the integers providing that the computer processes the criteria to generate corresponding questions and presents those questions to the user, the method does not include any steps that are outside the normal use of a computer. It is not suggested that the creation of the plurality of assessable criteria themselves form the basis of the claimed invention. They are present on the NTIS website from which they are retrieved. It is not suggested that the presentation of the questions or the processing of the user’s responses involve ingenuity themselves or that this constitutes the requisite manner of manufacture. 

We conclude that the claimed invention is to a scheme or a business method that is not properly the subject of letters patent."

See also IP Whiteboard

Personal Information

The Australian Administrative Appeals Tribunal has decided that companies who collect operational data about services they provide to individual end users, is not personal information about customers.

See Telstra Corporation Limited and Privacy Commissioner [2015] AATA 99 (18 December 2015)

Thursday, December 24, 2015

The Advocate Defames The Bank on Social Media


Michael Fraser, who goes under the name of The Advocate, operates a number of complaints-based websites, such as http://openadvicereview.com.au.  He had a big loss in court, in a defamation case brought by Commonwealth Bank.  See AFR story.

Sunday, December 06, 2015

United States Federal Circuit Judges Express Concerns for Current State of Patent Eligibility Law

There will be no en banc review of a Federal Circuit panel decision that an important medical diagnostic method is ineligible for patent protection under 35 U.S.C. 101. However, in opinions accompanying the order denying review, several Federal Circuit judges expressed concerns for medical diagnostics under the current state of patent eligibility law. Ariosa Diagnostics, Inc. v. Sequenom, Inc., Fed. Cir., No. 14-1139, 2 December 2015.

The patent at issue is directed at a process for detecting paternally-inherited fetal DNA in maternal blood samples and for performing a prenatal diagnosis based on that DNA. This method permits the diagnosis of possible birth defects without using highly intrusive measures.

The Federal Circuit panel decision acknowledged that the invention in this case revolutionized prenatal care. However, it ruled that the claimed method is patent-ineligible under Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012), because it acts on natural phenomenon with well-understood, routine, and conventional steps. In a concurring opinion, Judge Linn reluctantly agreed but only because of the Supreme Court’s sweeping and unnecessary statements about patent eligibility.

The Federal Circuit on December 2, 2015, denied the petition for en banc review.

To read the opinions accompanying the en banc order in this case, click here; to read the panel decision in this case, click here.

Monday, November 23, 2015

History of Software Patents in the United States

A good article from the National Law Reviewing regarding the history of software patents in the U.S.

See History

Monday, October 05, 2015

Dot Horse

An interesting blog post concerning the new Dot Horse gTLD:

http://everythingtrademarks.com/2015/09/13/dot-horsing-around/

"Despite its stated purpose, it has – inexplicably – brought together a community of equine parodists. "

Saturday, September 19, 2015

Ninth Circuit Rules That Copyright Holders Must Consider Fair Use Before Issuing DMCA Takedown Notice

Media companies and other copyright holders may need to change the way they deal with infringing content on the Internet.  In a closely watched copyright case, Lenz v. Universal Music Corp. (also known as the "Dancing Baby" case), the United States Court of Appeals for the Ninth Circuit ruled yesterday that copyright holders must consider fair use before issuing takedown notices to remove allegedly infringing content from websites such as YouTube and Facebook. This decision has significant implications for owners of copyright-protected content, especially studios, record labels, publishers and other entities with large content catalogs, as well as individuals and businesses that rely on fair use to exploit copyrighted material owned by others. 

Saturday, September 12, 2015

Redlands Council Threatens Lawsuit against Facebook Posters

See Brisbane Times

"Redland City Council has sought to shut down online criticism by sending threatening legal letters to residents over comments made on social media.

Five residents have received the legal threats in the past week over Facebook posts that suggested, among other things, that political donations from developers had swayed council decisions."