DRAGON FOUNDERS SAY - WE WANT OUR COMPANY BACK
US NEWS - SUPREME COURT REVIEWING FREELANCE CASE
The case could reshape electronic publishing both for online titles and other digital formats, such as CD-Rom. Furthermore several justices appeared to express support for the six writers involved in the action. Justice Antonin Scalia, in particular, questioned arguments by the New York Times that an online article is part of a revised version of a print publication which the Copyright Act would allow without additional compensation. "You've invented a revision that has no real-world existence," said Scalia.
The articles in question were published between the 1976 Act and the mid-1990s, when most magazines started putting electronic rights in their freelance contracts. The six writers are trying to get paid for stories that appeared in the New York Times, the Lexis-Nexis database, Newsday and Sports Illustrated. "What the Nexis system does is exploit articles on an article-by-article basis," said Laurence Gold, the freelancers' lawyer.
A New York federal appeals court previously ruled in favor of the writers. The Supreme Court is expected to rule on the case by June. It is also interesting to note that last week the 11th US Circuit Court of Appeals issued a ruling that the National Geographic group had violated copyright law when it reproduced, on a CD-Rom, copies of magazines that contained Miami photographer Jerry Greenberg's work. Greenberg had sold them the print rights but they had not obtained his permission for the photos' reproduction in other formats.
AOL LIABLE FOR CONTENT INFRINGEMENT UNDER GERMAN LAW
AOL had argued before the trial court that it did not have knowledge of the infringing content and that it was technically impossible to monitor the huge data flow over the AOL service - both arguments that would seem to remove it from liability under Article 5 of the German Telecommunications Services Act (Teledienstegesetz). Nevertheless, the court ruled that an ISP is liable if copyright infringement can be linked to any of its services at all, and that it was AOL's obligation to prevent the download of copyrighted music files. The appeals court ruling confirms the potentially broad liability of German ISPs, pplacing on them a heavy obligation to control third-party content on their servers.
PRIVACY IN THE US - FROM MICROSOFT P3P TO THE EU AND SPAM
So how does P3P work? Basically the system provides a uniform language for web site privacy policies and this same language is replicated in the browser software, giving users the option to set their own privacy requirements. For example, Microsoft's P3P default setting will reject all cookies from any third-party company - such as an advertiser - unless that company also complies with P3P and has an opt-out mechanism on its own site allowing users to block any cookies from being sent their way.
Naturally the P3P proposal has its critics. For example, it will only work if enough organisations adopt P3P as the privacy policy language on their sites. It also presents users with yet another raft of preferences and settings to adjust on their browsers. And, of course, if users do not adjust their settings, then Microsoft IE 6 default settings will effectively become the de facto privacy standard for the internet!
By coincidence earlier this month the Information Services Executive Council, an affiliate of the US Direct Marketing Association, published a study showing that opt-in requirements and other limitations on e-commerce could increase total costs at online retailers by 3.5 percent to 11 percent.
Elsewhere in the USA, the US Commerce & Treasury Department has criticised the EU's proposed new privacy rules governing trans-Atlantic electronic commerce. In a letter dated 23rd March, the Bush administration accused the EU of trying to impose rules that are "unduly burdensome requirements that are incompatible with real world operations".
The letter, which asks that the implementation of the new rules - originally planned for June - be delayed for further negotiation, says the Department "share the concerns of a number of multinational firms that the adoption of the proposed standard clauses will introduce uncertainty about the use of contracts". (The 'standard clauses' in dispute would make it mandatory for US companies operating in the EU to operate under the EU's stricter data protection regulations and thus would hit banks and other financial service operations lending to or investing in EU businesses.)
Finally, earlier this week the US House of Representatives began considering yet another piece of legislation - the Unsolicited Commercial Electronic Mail Act - aimed at curbing the spread of spam and similar firms of junk email. The bill, sponsored by congresswoman Heather Wilson of New Mexico and already approved by a congressional sub-committee, would require anyone sending unsolicited commercial email messages to provide a valid return email address so recipients can serve notice that they want to opt-out of the mailing list.
AND PRIVACY IN AUSTRALIA
The working party stated that this problem "renders it necessary to assume that all data transfers to Australian businesses are potentially to (a) small business operator which is not subject to the law unless the name of the small business is inserted in the Privacy Commissioner's register." Australian Attorney General Daryl Williams said the committee's comments showed that the EU was ignorant of Australian laws which, he claimed, go further than the US Safe Harbor proposals which the EU had accepted.
NEW MICROSOFT INITIATIVE RAISES DATA FEARS
In the US, companies like AOL Time Warner are already talking to antitrust lawyers about whether HailStorm will further strengthen the market dominance of the Windows operating system. While in Europe, the big concern relates to privacy issues and whether HailStorm's proposed facility allowing users to centrally store and manage personal data, such as credit card details, on Microsoft servers and "selectively give the information out to third parties" would be in breach of data protection legislation.
NEW COPYRIGHT ADVICE SITE
VERITY TO POWER ELAW.COM
NAPSTER HEADING BACK TO COURT ?
OFFERING A WEB LIFELINE AMID THE FOOT & MOUTH CRISIS
According to Adrian Miles, who runs the service "The internet in this crisis situation is turning into a life-line for many farmers and people under quarantine. It is not only useful advice such as on our site that they can access, but also use webcams to talk to relatives, some of whom are just down the road. The sense of isolation is one thing technology can definitely break down. Farmers can get legal advice on their business situation through us, and we can put them in touch with a company solicitor to help them. This can all be done through the internet and by email."
www.company-solicitors.co.uk
LITIGATION SUPPORT - IS THAT A SMOKING GUN IN YOUR EMAIL ?
But, before anyone gets too excited, it is worth taking into account that digital evidence involves its own unique problems when it comes to discovery.
You need to be sufficiently familiar with the technologies involves to ensure you capture the "hidden data" associated with electronic files. Or, to put it another way, if you merely print out paper copies of electronic files, you may miss some of the juicier pieces of evidence.
For example, email messages may not only contain attachments but the "header" data on the original files may also disclose who the "cc" and "bcc" recipients of a message may be - or the true identities of recipients shown merely as "nicknames". With spreadsheets, the original files - but not the printed hard copies - will contain the formulas and worksheets that reveal how the underlying assumptions and calculations were reached. Document management systems may reveal earlier drafts of the document. And, wordprocessing files may disclose embarrassing "metadata" in the "properties" file - one US law firm recently found itself with egg on its face when a client checked out the metadata and discovered the document they were being billed for was originally drafted for another client.
This is all fascinating stuff but it does require technically savvy people to undertake the discovery process otherwise they risk damaging, corrupting or losing this data.
For instance, a lot of wordprocessing documents have an auto-update feature that sets a fresh day's date each time the file is opened but this is the last thing you want if you are trying to establish the true date when one of the parties first learned of a salient fact. Likewise, retrieving this kind of data from multiple PC networks, server hard drives, tape back-up systems, archives, laptops and PDAs is not a job for amateurs, particularly when all the evidential data has to be stripped out from the associated operating systems bumph, such EXE and DLL files.
Finally, there is also one very important strategic issue to consider, namely do you actually dare pursue the discovery of electronic evidence against the other side?
The problem is that if you do, they will inevitably reciprocate and it could be that what they find in your files proves to be more damaging to you than the evidence you recover from their files. For instance, are you confident none of your staff have ever sent emails containing derogatory comments about the other side to third-parties or messages revealing that your own business ethics may be less than pure as the driven snow? And what happens to your credibility if the other side discover you have unlicensed copies of software applications on your network (this can happen as a result of innocent mistakes in the best run organisations) or that one of your senior managers appears to have been spending his time downloading pornography off the internet?
The disclosure issues associated with digital evidence are undoubtedly a subject all lawyers involved with serious civil litigation work are going to have to learn to live with but for the time being the only clear messages to emerge are that this is a far more complex issue than it first appears and that it is also a potential double-edged sword.
LEGAL TECHNOLOGY NEWS.COM - FROM THE PUBLISHERS OF LEGAL TECHNOLOGY INSIDER. CLICK HERE FOR THE LATEST LEGAL IT JOBS, EVENTS DIARY AND ADDITIONAL NEW MEDIA LAW REPORTS. NEXT ISSUE - 05.04.2001
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