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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.

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.

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

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.

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.

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.

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.

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/.

How should damages be assessed for privacy and cybersecurity breaches

Listen to this podcast where I discuss how damages should be assessed in privacy and cybersecurity lawsuits. The Lawyers Weekly Show host J...