Keyword advertising raises interesting questions beyond the run-of-the-mill trademark infringement and unfair competition issues typically discussed. For instance, if a sponsored ad can be clicked in three separate countries, can the Courts of each of those countries take jurisdiction to hear and determine a dispute? The Court of Justice of the European Union has given a strange answer to this question, which you’ll probably want to know about if you, or your competitors, do any business online. Continue reading »
A quick note to mark the passing of 2011 and the start of 2012. Thank you all for reading and commenting here (and on Twitter) on the stories that have been reported on these pages. I’m looking forward to posting much more in 2012.
There has been plenty to contemplate in the last 12 months and we look forward to new challenges and opportunities in the months that lie ahead. Several big IP cases look likely to make their mark next year, including Viacom v. YouTube, The Authors’ Guild v. Google and NLA v. Meltwater, and we may begin to see the fallout of the (UK) Supreme Court’s ruling that foreign copyright claims can be adjudicated in the English courts.
Whatever plans you have for next year, I hope they will be realized, that you enjoy the chase, and that you will be challenged by the work that you do.
Microsoft has recently tested a new system of advertising whereby ads are not placed on top of the organic search results, nor to the side, nor on a colored background, but actually within the list of organic results. Is this a smart move? Will Microsoft find itself on the end of a (meritorious) lawsuit for trademark infringement or unfair competition? Probably not. Continue reading »
Simply opening a webpage on a computer can infringe copyright, according to The Newspaper Licensing Agency Ltd & Ors v. Meltwater Holding BV & Ors  EWHC 3099 (Ch). If followed, Proudman J’s ruling could have a radical impact on free social media services, such as Twitter, LinkedIn and Facebook, as well as free monitoring services such as those offered by Google and Bing.
On the positive side, several arguments were not pursued before Proudman J, and could form the basis of a successful appeal to the Court of Appeal.
The single issue before the Judge was whether individuals and businesses (“End Users”) could lawfully “receive and use” e-alerts that contained headlines and extracts (256 characters or less in total) of online news articles without first obtaining permission of the Publishers of those online news articles. See paragraphs 6 and 22.
The articles in question each had to be posted online before forming part of an e-alert, and were not behind paywalls. The Publishers’ websites contain small links to terms and conditions in their footers that prohibit the commercial re-use of articles posted on those sites. Each of these sites could be browsed and read regardless of whether the user had even seen the terms and conditions.
The e-alerts complained of by the Publishers are the same type of news alerts offered to the public by commercial search engines such as Google and Bing. The Publishers argued that Meltwater’s e-alerts damaged their businesses by diverting web users away from their sites, although for reasons not disclosed they did not object to the copying, parsing and processing of their articles, and the subsequent emailing of extracts from those articles, by any search engine, even if such acts were carried out at the behest of and for the benefit of End Users. See paragraph 20. The Publishers also argued that recipients of these e-alerts who did visit their website would be doing so in breach of their terms and conditions.
The statute governing this case is the Copyright, Designs and Patents Act 1988. The starting point is sections 16-18 an 23.
(1) The owner of the copyright in a work has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom—
(a) to copy the work (see section 17);
(b) to issue copies of the work to the public (see section 18);
and those acts are referred to in this Part as the “acts restricted by the copyright”.
(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.
(3) References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it—
(a) in relation to the work as a whole or any substantial part of it, and
(b) either directly or indirectly;
and it is immaterial whether any intervening acts themselves infringe copyright.
(4) This Chapter has effect subject to—
(a) the provisions of Chapter III (acts permitted in relation to copyright works), and
(b) the provisions of Chapter VII (provisions with respect to copyright licensing).
(1) The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.
(2) Copying in relation to a literary … work means reproducing the work in any material form.
This includes storing the work in any medium by electronic means.
(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.
(1) The issue to the public of copies of the work is an act restricted by the copyright in every description of copyright work.
[F1(2) References in this Part to the issue to the public of copies of a work are to—
(a) the act of putting into circulation in the EEA copies not previously put into circulation in the EEA by or with the consent of the copyright owner, or
(b) the act of putting into circulation outside the EEA copies not previously put into circulation in the EEA or elsewhere.
(3) References in this Part to the issue to the public of copies of a work do not include—
(a) any subsequent distribution, sale, hiring or loan of copies previously put into circulation (but see section 18A: infringement by rental or lending), or
(b) any subsequent importation of such copies into the United Kingdom or another EEA state,
except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEA copies previously put into circulation outside the EEA.]
[F2(4)References in this Part to the issue of copies of a work include the issue of the original.]
The copyright in a work is infringed by a person who, without the licence of the copyright owner—
(a) possesses in the course of a business,
(b) sells or lets for hire, or offers or exposes for sale or hire,
(c) in the course of a business exhibits in public or distributes, or
(d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
an article which is, and which he knows or has reason to believe is, an infringing copy of the work.
SUBSISTENCE OF RIGHTS
Is the reproduction of headlines an infringement of any of a Publisher’s copyrights? (paragraphs 57-72)
Here the issues to be resolved were whether the reproduction of a headline could infringe the article to which it attached, and whether there could be a separate, independent copyright in a headline alone. It was accepted by the litigants that headlines were sometimes the result of independent skill and labour, written by different authors, and for a different purpose, than the article to which they attached.
Proudman J made three findings.
- First, a headline is capable of being a copyright work independent of its article depending on the process of its creation and the level of skill and labour that has gone into creating it. The headline would have to be “independently and separately produced” by someone other than the author of the article. See paragraphs 71-72 and 84. This isn’t really surprising.
- Second, if the headline is not sufficiently original to be an independent work, but was written by the author of the article, then the work to be considered is the headline and article together. Could a reproduction of the headline infringe the copyright in such a work? To answer this question, Proudman J relied heavily, at paragraph 68, on the judgment of the ECJ in Infopaq to hold that the reproduction of any extract, whether a headline or snippet, is the reproduction of a part of the copyright work “if that extract contains an element of the work which, as such, expresses the author’s own intellectual creation” (Infopaq, at paragraph 48), meaning that “the various parts of a work thus enjoy protection under Art 2(a) of Directive 2001/29, provided that they contain elements which are the expression of the intellectual creation of the author of the work” (Infopaq, at paragraph 39). Under this test, reproduction of a headline which summarizes the article may well amount to an infringement.
- Headlines that lack sufficient originality to be independent works and are written by third parties probably can be reproduced without fear of infringement. See paragraph 72.
None of this is really surprising, though perhaps it will be a rare case where a headline can meet this test.
Text extracts (paragraphs 73-86)
For articles in which copyright subsists (which will be the norm), the question here was whether the reproduction of (and possibly other acts in relation to) short extracts from these articles could infringe the copyright in those articles. The question focusses on whether the extracts appropriate the skill and labour used by the author to make it an original copyright work (paragraph 83).
Put simply, if it includes “an expression of the intellectual creation of the author”, or, to restate it more poetically, “if it demonstrates the stamp of individuality reflective of the creation of the author or authors of the article”, then there is an infringement. See paragraphs 74, 77 and 83. This is sometimes referred to as the Infopaq test, but is really just a way to determine whether the extract contains a qualitatively, rather than simply a quantitatively, substantial reproduction of the underlying work. (I’m not really sure why the judge refers to part of the extracts being “significant and striking” in paragraph 84. This seems to be irrelevant, and a potential distraction to the real test.)
Clearly search engines, which copy not just all the words of the page but all the meta data contained in the page’s HTML, have the most to lose on this head since the UK has no fair use defence such as exists in the USA.
Websites as databases (paragraphs 87-92)
From para 31:
S. 3 CDPA provides that a database may be a literary work. S. 3A (introduced to give effect to the Database directive 96/9/EC) defines database for this purpose as “a collection of independent works, data or other materials which (a) are arranged in a systematic or methodical way, and are (b) individually accessible by electronic or other means”. S 3A (2) sets out a special definition of originality in relation to databases, namely “if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.”
The arguments in this section proceeded on the basis that a website could be a database for the purposes of section 3A CDPA, although PRCA denied that the sites relied on by the Publishers’ in this case met the threshold of originality to be databases. See paragraph 89.
I’m not certain that it was correct to make this concession: a website, presented on the client side (i.e. in the browser), is very different to the ordering of subfolders and files within the root folder on the server side. It seems a stretch to hold that each webpage on the client side within a website has been “arranged in a systematic or methodical way”. That would indicate that the structure of the database is simply the address of the pages in question.
Anyway, the point was not argued and is irrelevant after Proudman J held, at paragraph 91, that the scraping of articles was not copying “a substantial part of the effort that went into the structure [sic – section 3A uses the word ‘selection’] and arrangement of the articles within the website”. If a website is a database, however, I disagree with this reasoning: scraping an entire website and copying it into memory is bound to copy not just part of the effort that went into the structure / selection and arrangement of each webpage within the website, but all of it, since scraping reproduces the client-side presentation of the site under the exact same address heirarchy.
But on the basis that I don’t think the client-facing website can, by itself, be a database, I think this is the correct conclusion.
Part II of this series will look at what Proudman J held constitutes infringement of headlines and text extracts, and will be posted tomorrow.
Amid plenty of fanfare, UK Prime Minister David Cameron recently announced plans to develop part of East London as a global IP hub that will compete with Silicon Valley. With the existing tech park dubbed “Silicon Roundabout” the plans are certainly ambitious, and David Cameron looked to two (US) tech giants to give credibility to the plans. The trouble for the Government, though, is that he seems to have jumped the gun.
After telling us that he’s going to review copyright law in the hope of creating another Google, David Cameron said that Google would create an innovation hub in East London and that Facebook will create a permanent home in East London for their Developer Garage programme.
Facebook responded immediately, first in a post on TechCrunch and then on Twitter. On TechCrunch, Dave Nattriss, Secretary of the Facebook Developer Garage that is already in London, said:
“‘Facebook will create a permanent home in East London for their Developer Garage programme’ – hmm, that’s news to us! We have been using TechHub for the past few months for our events, but it’s barely ‘east London’, and certainly not permanent, nor has been created as a home for our organisation. So we’re not really sure what Cameron is referring to on that one?!”
He followed that up with another comment:
“They didn’t tell us … And we’ve since had confirmation from Facebook’s European Policy Manager that they have no plans to move or start another office as things stand. Cameron’s people seem to have jumped the gun on this point at least.”
So where does this leave the plans for growing Silicon Roundabout? It seems that their implementation was not imminent, but this news will only add to the suspicion that this was a PR stunt that has not been thought through in any great depth. Many are also surprised that Google, which has been a lightening rod for criticism from IP owners, should be the catalyst for another IP review (according to the report here). It’s also interesting to note that neither of the two companies referred to are UK-based companies: should the Government be focussing on innovation from within the UK, rather than importing it from outside?
And here’s something to ponder: if David Cameron’s speech was intended to attract investment, was it a commercial communication? If so, and if he used the “Facebook” mark without Facebook’s permission, has he committed trademark infringement and/or passing off?
See more here.
Most readers of this blog will be aware that the recent 4Chan / Anonymous attacks against various websites associated with the enforcement of copyrights have been followed by ISPs claiming, in some cases hypocritically, that the current process for investigating intellectual property infringement claims does not adequately protect their customers.
By way of recap, the process used for the last several years has been that rights holders: identify IP addresses that they contend are the digital fingerprint of an Internet connection that has been used to unlawfully copy media files across the Internet or to make those files available; request from the ISPs responsible for those IP addresses the names and contact details of the customers to whom they were allocated at a particular time; and, if the ISP does not provide the information requested (as they usually would not), apply for a court order obliging the ISP to disclose the information sought, in contemplation of future litigation (a Norwich Pharmacal Order (“NPO”)). ISPs were not in the habit of contesting these applications, meaning that if the potential litigant met the threshold for the NPO, the ISP would be ordered to supply the details. Ancillary issues, such as the format of the data, including whether it should be encrypted, would also be included in the order.
That was the case until a few months ago.
Claiming to be perturbed by the way in which some rights holders were aggressively using the system to identify potential infringers and threaten them with legal action unless they paid some money to settle the claim (which, in itself, is no more than the everyday cut and thrust of the real world of litigation), but never actually following unsettled claims through to litigation, a group of cyber terrorists / freedom fighters (take your pick) began organising and recruiting massive computing power to issue DDoS attacks against lawyers, rights holders and even the UK IPO (which was a strange choice given how copyright works in the UK). Anyone suggesting that those responsible for these torts (and possibly crimes) are as unable to engage in human interaction as any other bully, and who believe that the real motivation behind this is the stubborn belief that once a digital item has been acquired once it can be copied indefinitely, would not be alone. But it’s beside the point.
After one particular set of attacks, customer details were leaked online and were distributed around the globe, in some cases by the same people who laud themselves as privacy champions. Go figure. Anyway, the PR for ISPs was not good, and BT’s response to the increasing scrutiny of the existing system was an 11th hour request for the court to defer hearing an NPO application on behalf of the Ministry of Sound until January 2011, so that they could respond to the application in their customers’ interests. The court granted their request.
(It should be mentioned that the leaked customer data included information that BT was ordered by the court to send only in encrypted form, and that BT failed to encrypt it. Accordingly, they are potentially in contempt of court for failing to comply with a court order. It should also be noted that no ISP, so far as I am aware, has been targeted by a DDoS attack.)
Then came the news last night that the Ministry of Sound has withdrawn its application, for an unexpected reason: having asked for a stay to allow it to consider the application, it turns out that BT has deleted 80% of the data covered by the application. According to the BBC, BT:
“said 20,000 of the 25,000 requested details had been deleted to comply with data retention policies. BT said it held data for 90 days before deleting it.
‘The Ministry of Sound and its solicitors are well aware of this,’ said a spokesperson for BT.
‘Upon request from Ministry of Sound, we saved as much of the specific data sought as we reasonably could and any not preserved must have been too old.’
But Ministry of Sound CEO Lohan Presencer said that it was ‘very disappointing that BT decided not to preserve the identities’ of the alleged file-sharers.”
The last point is of particular interest to a litigator. Once litigation is contemplated, parties are immediately placed under an obligation to preserve all information likely to have to be disclosed in the course of the litigation. In the UK, the Civil Procedure Rules make this point explicit in Practice Direction 31B Para. 7:
“7 Preservation of documents
As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business.”
If it turns out that BT has deleted this data after receiving notice of the potential litigation, they could not only face contempt proceedings for the sending of data in unencrypted form, as well as enforcement proceedings by the Information Commissioner for failing to safeguard personal data (although both of those are very unlikely), they might also have breached their preservation obligations under the CPR. If their lawyers failed to advise BT of those obligations, then they too may have breached the obligations they owe to the Court.
I think it is more likely that what BT actually means is that 80% of the data requested had already been deleted when their preservation obligations kicked in, which would mean they haven’t done anything wrong. But the story provides two good reminders:
1. Firms must move quickly when dealing with personal data. Depending on the industry and the jurisdiction, personal data may (have to) be deleted after being held for no more that 90 days.
2. Lawyers on both sides of a dispute must inform their clients of their preservation obligations, particularly where electronic documents (or a likely counter-claim) are concerned. I recall working on a case where the other side’s lawyers had not adequately informed them of their obligations, with the result that all copies of the software at issue had been over-writtten by subsequent versions. Even if this happens due to a genuine mistake, you can guess how it will look to a court.
Ministry of Sound has said it has no plans to stop enforcing their copyrights, and we await to see the first test case to come before the courts.
If you like to share, why not share this?
Google has put an end to its controversial Keyword “Suggestion” Tool after the CJEU ruled that it might not benefit from the exemptions from liability found in the E-Commerce Directive. It also appears to have modified its remaining services to protect the “LOUIS VUITTON” trademark, but continues to allow advertisers to sully other luxury brands by offering obviously detrimental words such as “fake” and “replica”.
Google’s Keyword Suggestion Tool has been a source of controversy since its inception. In a nutshell, advertisers, regardless of their aims or track record, could use the Keyword Suggestion Tool to determine how popular other keywords were, so that they could add those keywords to ones already chosen for their advertising campaign. Where an advertiser had selected a generic term (such as “suitcases”), Google might suggest that they also use a trademark (such as “SAMSONITE”); where the advertiser had selected a trademark (such as “LOUIS VUITTON”) Google not only suggested obvious nouns such as “bag”, but also suggested words such as “imitation” and “copy”.
In defending Louis Vuitton’s suit against them in France, Google said it didn’t matter whether they were liable since their acts were automatically excused by Section 4 of Europe’s E-Commerce Directive, in particular Article 14 (the “hosting” safe harbor).
Court surprises Google by ruling that it may be held to account for helping advertisers to sell fakes after all
The French court asked the CJEU to clarify the scope of Article 14. The Court duly obliged, holding that only the “mere technical, automatic and passive” acts of an intermediate service provider would be excused by Article 14. This interpretation is not what Google had asked for, and is considerably narrower than the equivalent provisions of section 512 of the US Digital Millennium Copyright Act, which have been given a broad interpretation in Viacom v. YouTube (albeit only in the District Court so far). See further the discussion of Article 14 and Recital 42 here. Having given its interpretation of Article 14, the CJEU then instructed Paris that:
- “it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores” (paragraph 114);
- “it is apparent … that, with the help of software which it has developed, Google processes the data entered by advertisers and the resulting display of the ads is made under conditions which Google controls. Thus, Google determines the order of display according to, inter alia, the remuneration paid by the advertisers” (paragraph 115);
- “the role played by Google in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords is relevant” (paragraph 118).
Bing reveals Google’s name change. Changes to the program itself suggest that Google might have made its position worse
The quotes above, particularly from paragraph 118, appear to have precipitated Google’s subtle (but perhaps pointless) changes to its AdWords program. If you look at the following screen grabs, you will see that a Google search for “Google’s keyword suggestion tool” gives only one result from the “adwords.google.com” sub-domain. That page is titled “Keyword Tool – Google AdWords – Online Advertising by Google” (grab 17). But the result of the same search performed on Bing on today’s date gives the page a different title. Although the URL and the page description are both identical, the title on the page is “Google AdWords Keywords Suggestions” (grab 1). The conclusion must be that Google has changed the name of its program so recently that not all search engines have captured the change.
Although Google clearly felt that this change of name was necessary, this rose smells the same: Google is still offering the same keyword suggestion tool. While they may hope that dropping the (superfluous) acknowledgment of the program’s purpose from its name will persuade courts that it is not “controlling” the content of ads, other features of the revised program appear to have had the opposite effect:
- Note that Google reserves the right to “disapprove” any keywords added by advertisers – see, e.g., the “Important Note” at the bottom of grab 3. Either this is a bluff and Google has no intention of “disapproving” any keywords, or it is exercising control over the program in a manner that could take it outside Section 4 (see quotation from paragraph 114 above);
- Google also appears to be exercising control over which brands it will protect and which it will not:
- The owner of a website selling fake goods who selects the trademark “LOUIS VUITTON” as its keyword will not find any suggestions for “fake”, “imitation”, “copy” or any other damaging phrases (grab 3 and grab 4); BUT
- The owner of a website selling fake goods who selects the trademark “OMEGA” (grab 5) as its keyword, on the other hand, will be offered the keywords “replica” (grab 6, three times; grab 7, once; grab 8, twice; grab 9, five times;); and “fake” (grab 7, once; grab 8, twice; grab 9, twice), as well as offerings of competitors’ trademarks (grab 7 and grab 9). Choosing “ROLEX” (grab 10) as a keyword results in offers of “replica” (grab 10, four times; grab 11, five times; grab 12, six times; grab 13, eight times; grab 14, seven times; grab 15, six times; grab 16, five times); “fake” (grab 10, once; grab 12, once; grab 13, once; grab 14, once; grab 15, twice; grab 16, twice); and “imitation” (grab 11, once; grab 12, once; grab 13, once; grab 15, once; grab 16, once), as well as offerings of competitors’ trademarks (grab 14 and grab 15). This means that around half of Google’s “suggestions” for this particular luxury brand contain references to either fakes or competing products.
What is the takeaway?
Google appears to have acknowledged that its Keyword Suggestion Tool was a liability. Despite this, it seems to be reserving the right to control keywords as well as demonstrating that is willing to and does manipulate its keyword tool to control what can get through it. The fact that it has done this for one brand (“LOUIS VUITTON”) while failing to do so for others, even when the illegality of the suggested keywords is indisputable from the context provided by Google (see grab 18 and grab 19), must mean that Google’s keyword (suggestion) tool is not a merely technical, automatic and passive service. As a result, it should not be able to benefit from the Article 14 Hosting exemption. (Whether Article 14 even comes into play depends, of course, on whether the national courts find Google liable for something other than registered trademark infringement in the first place.)
Second, automated processes increase the frequency of action (and therefore infringements) beyond what a group of humans could ever do. It cannot be right that otherwise harmful acts can become permissible simply because they have been carried out by a program. Courts must remember that programs function according to the specific instructions they have been given, and that when a program acts it is only because someone has coded it to perform that precise function at that precise time – programs have no discretion; people do. Blanket immunity for computer programs invites programmers to ignore (or even turn a blind eye to) the potential and sometimes obvious damage their products can cause. “Neutral” services must therefore be interpreted to mean services which treat all inputs the same and whose output is not interfered with. Google’s actions in relation to the “LOUIS VUITTON” mark indicate either that the input is designated for special consideration or the results are vetted. Either way, the service is not “neutral”.
Third, advertisers risk purchasing a lawsuit from Google when they use the AdWords service. The CJEU has held in Google France, and reaffirmed in Portakabin, that an advertiser who selects a third party trademark as a keyword to trigger ads which are even vague as to their origin is likely to infringe those trademarks and be liable for damages, as well as to be the subject of injunctive relief and possibly a costs award. So unless an advertiser is able to set out clearly, within their limited characters, who they are and who is responsible for the ad and its related goods and/or services, and to avoid creating any perception that there is a link between them and the owner of the trademark, regardless of whether they reproduce the trademark in their ad or not, they should avoid using someone else’s trademark to advertise online.
By the end of April, it was begining to look like Google was turning a corner on what had started out as a potentially difficult year. In Europe, Google was in a high-profile dispute with LVMH, the owner of famous brands such as Moët, Hennessy, Louis Vuitton, Fendi and Christian Dior. If the result went the wrong way for Google it would threaten their AdWords cash cow across the entire European Community. At the same time, Google was facing AdWords proceedings in both the Northern District of New York and the Eastern District of Virginia. Add to that the privacy complaints and rumors of government investigations that greeted the launch of its “Buzz” social networking project, and comments from Eric Schmidt, Google’s CEO, that if you don’t want Google to publicize and profit from something, “maybe you shouldn’t be doing it“, and you can see why things looked a bit ominous for Google.
But then it all started going right. First of all, Rescuecom surprised everyone in early March by dropping its (New York) trademark infringement action, declaring victory but not gaining any of the relief it had been seeking from the lawsuit.
Then the AdWords program survived the ruling of the Court of Justice of the European Union (video here, additional comments here). Their judgment was hardly a ringing endorsement of the service, and there are various doors left wide-open to challenge it on other grounds, but at the very least it lives to fight another day.
Following this, Google’s motion for summary judgment in the (Virginia) Rosetta Stone action was granted (although Rosetta may yet decide to appeal once they see the Judge’s reasons for his decision).
And, to top it all off, the German Federal Supreme Court held that a photographer must be deemed to have impliedly consented to Google copying images from her website because she had not prevented it from doing so. (I wonder how many other Courts in Europe would reach the same result or adopt that reasoning: it appears to put a barrier between the artist and the automatic copyright protection to which she is supposed to be entitled, and to turn the idea of “exclusive rights” on its head.)
But then, possibly feeling a bit too relaxed after such a roll of good results, and in a scene reminiscent of President Obama’s comments on the Cambridge police after dealing with the last of a tough evening’s questions on healthcare, Google responded to the news that it had been spying on ordinary people’s wifi networks with its Street View cars for three years, that it was storing the data it had collected (including emails), and that it was refusing to delete it until ordered to do so, with two particularly patronizing comments: “No harm, no foul“, said Eric Schmidt (a principle which J Briggs says, in the comments, is the Peeping Tom’s charter); and “You can’t prove any harm“, said Larry Page. This article indicates that the UK’s Information Commissioner believes the Data Protection Act had been breached, and that the FTC is launching an inquiry, but here The Times (London) makes out that Google has been forced into the admission after not being completely honest with regulators:
“Google made the admission after German authorities began to examine why Google was using the cars to collect wi-fi data at all. A month ago Google said it was collecting only the name and location of local wi-fi networks — information, it argued, that was publicly available and was useful to help it improve its location services. Its data collection was much more invasive.
Internet activity such as e-mails, photos and which websites a user was looking at could have been collected by the cars.”
As does the New York Times:
“European privacy regulators and advocates reacted angrily Saturday to the disclosure by Google, the world’s largest search engine, that it had systematically collected private data since 2006 while compiling its Street View photo archive. After being pressed by European officials about the kind of data the company compiled in creating the archive — and what it did with that information — Google acknowledged on Friday that it had collected snippets of private data around the world.
Mr. Caspar [data protection supervisor for Hamburg, in Germany] said he had inspected one of Google’s Street View recording vehicles at the company’s invitation this month and had noticed that the recording device’s hard drive had been removed. When he asked to view the drive, he said he was told he couldn’t read the information anyway because it was encoded. He said he pressed Google to disclose what type of information was being collected, which prompted the company to examine the storage unit.
Germany’s federal commissioner for data protection and freedom of information, Peter Schaar … questioned whether Google’s collection of the data was a simple oversight, as the company has maintained.”
Bad news all round, particularly for Google if it turns out that no damage has been done nor any data unlawfully used. It’s a stark reminder, though, of the importance of perception when discussing your own shortcomings: no-one (except the New York Times) appears to be paying any attention to the mea culpa offered by Google’s Kay Obermeck: “This was obviously a mistake, and we are profoundly sorry.”
No doubt you are.
This was (almost) the title of the first article I ever had published externally, back in March 2007 when I had been in the IP Litigation department of my firm for about 8 months.
I’m pleased to say my own style has developed since those early days, but when you’re starting out it’s worth bearing in mind not just what you are going to say but also where you are going to say it: you may have a choice about where your creative endeavors are published. Having submitted articles and notes to a few different publishers, experience has shown me that the main difficulty with external articles, as opposed to those published within the Business Development and Knowledge Management functions of your law firm, is choosing the editor to whom you will cede final control of your work.
Clearly, you should do what you can to avoid any publisher who is unlikely to be familiar with the intricacies of the facts of a case, or to appreciate the subtleties of the ratio decidendi (a particular problem when the word limit doesn’t permit extensive analysis of the factors leading to a particular conclusion nor treatment of what the author is not saying). Consider too that an editor will likely feel at liberty to make minor changes without consulting the author (rightly), such as in layout and the style of language used, but if a look through past articles demonstrates lots of examples of jarring sentences, or paragraphs not flowing and joining ideas particularly well, then don’t just assume it’s always an author’s fault. The piece might actually have become disjointed, as if it was the product of two minds, because an editor has made too many changes or has been too quick to make them.
Be aware too that publishers might run articles through “Find and Replace All” without checking them too closely afterwards. Sometimes consistency or house-style will require changes to be made to certain spellings, but where a particular alternative is used as a proper noun (e.g. the UK’s “Trade Marks Act”), then you may prefer it to be left as is, even if it is acceptable for other instances of the alternative spelling to be amended (e.g. “trade marks” becoming “trademarks”) for the sake of the wider audience. Take control of it: if something is important the way it is, tell the publisher.
All of this is important, of course, because your name will be attached to your work. You will want to write not just because you enjoy your work (hopefully that will be the case) but also to show others that you know what you’re talking about and that your knowledge is right up-to-date. The last thing you want is for people to read your work and think less of you.
By the way, my article (which can be found here) discusses issues of similarity of marks and goods/services in a dispute relating to the branding of fruit juices. It also offers some clarification on what is meant by a trademark owner’s “acquiescence” in a third party’s use of a mark.