Hungary is one of these, as 1709 Blog friend and copyright enthusiast Péter Munkácsi (Hungarian Ministry of Justice and Public Administration) reports:
|An infamous case of restoration|
|An infamous case of restoration|
"According to Advocate General Cruz Villalón an internet provider can be required to block access by its customers to a website which infringes copyrightSuch a court injunction must refer to specific blocking measures and achieve an appropriate balance between the opposing interests which are protected by fundamental rights
According to EU law, Member States are to ensure that copyright holders or holders of related rights are able to apply for an injunction against intermediaries whose services are used by a third party to infringe their rights [referencing Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society]. It is already established that internet providers ["Internet access services", referring to Case C-557/07 LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten and Case C-70/10 Scarlet Extended. The same applies to operators of social networking platforms: see Case C-360/10 SABAM] can in principle be regarded as intermediaries and therefore as persons against which such injunctions, which are aimed at bringing to an end infringements already committed and at preventing further infringements, can be granted. In practice, the operators of illegal websites and the internet providers which make them available online are frequently based outside Europe or conceal their identity, making it difficult to pursue them before the courts.
The Austrian Oberster Gerichtshof ... seeks to ascertain ... whether a provider which provides internet access only to users of an illegal website is to be regarded as an intermediary in that sense, that is to say as an intermediary whose services are used by a third party – such as the operator of an illegal website – to infringe copyright, meaning that an injunction can also be granted against it. It also seeks clarification of the EU rules on the content and procedure for the issuing of such an injunction.
[In June 2011.... kino.to closed after the German prosecuting authorities took action against its operators]. UPC has no legal relationship with the operators of the website and made neither internet access nor storage space available to them. According to the ... Oberster Gerichtshof, it can, however, be assumed with near certainty that individual UPC customers availed themselves of the kino.to offer.
In his Opinion today, Advocate General Pedro Cruz Villalón takes the view that the internet provider of the user of a website which infringes copyright is also to be regarded as an intermediary whose services are used by a third party – that is the operator of the website - to infringe copyright and therefore also as a person against whom an injunction can be granted. That is apparent from the wording, context, spirit and purpose of the provision of EU law.
[the fundamental right of the copyright holder to property vresus the provider’s freedom to conduct a business and its customers’ freedom of expression and information, on which the provider can also rely] to prohibit an internet service provider generally and without ordering specific measures [eg an IP block, where requests are no longer forwarded to the blocked IP address, or a DNS block. DNS (Domain Name System) blocks concern domain names which are used instead of unwieldy IP addresses by users. DNS servers, which are operated by every provider, ‘translate’ domain names into IP addresses. In the case of a DNS block, such translation is prevented] from allowing its customers to access a particular website that infringes copyright. That also applies where the provider can avoid incurring a penalty for breach of that prohibition by showing that it has taken all reasonable steps to comply with the prohibition. Advocate General Cruz Villalón underlines in that connection that the provider of the user has no connection with the operators of the website that infringes copyright and has not itself infringed the copyright.
However, a specific blocking measure imposed on a provider relating to a specific website is not, in principle, disproportionate only because it entails not inconsiderable costs but can easily be circumvented without any special technical knowledge. It is for the national courts, in the particular case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights. When weighing the fundamental rights it must however be taken into account that in future action could be taken in numerous similar cases against any provider before the national courts. Advocate General Cruz Villalón also points out that rightholders must, in so far as possible, claim directly against the operators of the illegal website or their providers".
|Loads of money!|
|Even more money|
|A blogger investigates the TARDIS|
"Does the EU's Orphan Works Directive leave Member States completely free to legislate autonomously in the area of orphan works?"This poll is a joint venture between the 1709 Blog and the IPKat (who is hosting the poll at the top of his home page sidebar). This morning's IPKat carries an explanatory post that discusses the issues in greater detail. If you are new to this debate, or are unsure what it entails, you may find that post helpful.
True, while closed copyright software owners maintain exclusive rights for, inter alia, copying, making derivative works and distributing their works, and more often than not are prohibitive with regards to allowing access to the source code as well as using the work for any purpose whatsoever – OSS licensing is usually much more permissive by nature. However, there are a handful of OSS licensing options and regimes, each based on a different concept of "free", and each complemented with a very different set of legal do's and don’ts.
Adv. Ravia pointed out the two major classes/ideologies of OSS licensing:
1. Permissive licences, which refer to basic copyright principles, but express the owner's wishes to waive most of its exclusive rights with simple and usually non-intrusive provisions, such as simply requiring the licensee to attach a short notice to his OSS-incorporated software. This licence class includes such simple and often short OSS standard licences as BSD, MIT, Apache 2.0 and the ever so gladdening WTFPL (Do What The F*** You Want to Public Licence); and –Moving from the basics to practice, second to speak was Ms Suzanne Erez (in-house IBM IP Counsel) on the topic "A smarter way to use open source". As Ms Erez pointed out, with OSS' sbusiness benefits (to name a few, open standards which allow companies and developers to skip "re-inventing the wheel" and build on previous efforts, and benefiting from future modifications by the open source community), the question is no longer "SHOULD we use open source", but HOW.
As in-house IP Counsel, Ms Erez shared her own process when asked to set the terms for using a certain OSS in IBM's developments. First is the OSS licence review, specifically for any reciprocity provisions. Second is pedigree review – namely, who were the contributors to the OSS? If these include developers who were employed as such in software companies or conducting research in certain institutions while privately working on the OSS, then perhaps the code was not theirs to license as OSS in the first place. Third is performing a code scan, namely looking and making a list of what's in the OSS package. Fourth – performing an internet search for the OSS and its different components, mainly to see when they were published, and whether or not they have been litigated before. Fifth and last is reviewing the outbound licence terms – namely, the license of the proprietary software designated to include the OSS in question, and advising on the necessary adjustments with regards to the OSS.
Ms Erez continued to emphasize the importance of creating awareness to open source throughout the company (and not just in the legal department), and having a strict company "Open Source Policy" which balances the risks and benefits of using OSS, and considers the different stages of use. For instance, while internal use of OSS during developmental stages may be okay according to most OSS licences (although in some cases may still expose the company to patent infringement claims, especially if the company has a high-profile and is considered to have "deep pockets"), it is important to spread awareness to everyone involved in order to avoid having to take hard decisions or take on unfavorable warranties later on. As open source today is an essential part of the business of most software companies, it is important to learn to use it for your benefit, while avoiding unwanted and unnecessary outcomes.
On that positive and practical note, third speaker Mr Muli Ben-Yehuda (owner of Hypervisor Consulting and Linux Kernel Maintainer) took the stage, to discuss "The Top Three Reasons Open Source Makes (Business & Development) Sense".
As for the companies and business perspective, Mr Ben-Yehuda pointed to the fact that an organization releasing its proprietary software under an open source licence can gain happier customers, as OSS is open to more and better updates and upgrades than "closed" software, and basically is expected to last longer.
Last to speak was Dr Ron Rymon (founder of White Source Software), on the topic "Enjoying Open Source without Compromising Business". As a novice software entrepreneur, Dr Rymon has experienced the uncomfortable situation where a previous company of his underwent a due diligence process in which it unexpectedly discovered hundreds of open source libraries and licenses used by its developers in connection with the company's proprietary software. This helped him appreciate the need for tools for OSS management, which can enable companies to better enforce their OSS policies, keep in order all OSS licensing documentation, and keep their finger on the pulse with regard to changes and updates for each OSS they used in their product. As Dr Rymon pointed out, while open source is likely to contain security vulnerabilities and other bugs just as any other software, and even though open source communities are often quick to fix those – OSS users are slow to update, as it's difficult and out of scope for developers to be in the know of every such constant updates. Considering that vulnerabilities and restrictions in OSS you use are your responsibility, it is of extremely high importance to keep all of these under control.
In order to do that, Dr Rymon recommends OSS users to adopt a "lifecycle" approach – namely, dealing with issues "at the door" and not post-hoc when it is difficult to discover and expensive to fix, and keeping track of OSS "inventory" and risks in real-time (which can be done using Whitesource's solutions).
|Some T&Cs are 50,000 words long - that's 20,000 words|
longer than Hamlet.
Which would you rather read?
"Can a contractual undertaking not to infringe copyright continue forever -- even if the legal basis for it has disappeared?
The definitive answer given by the Scottish Court of Session appeal court (Inner House) to this question last Friday was a resounding ‘No’. This case was part of the fall-out of the FAPL case -- Football Association Premier League Ltd and others v QC Leisure and others (no 2) and the ruling of the Court of Justice of the European Union (CJEU), for which, click here. In that case, as readers will know, the CJEU decided that clauses prohibiting the use of foreign decoders and smart cards were void as a restriction on competition under European law - the free competition provisions of European law prevailed over the UK's Copyright, Designs and Patents Act 1988.
In the Scottish version of this case the defenders, as the owners of three pubs on the west coast of Scotland, had screened live Scottish Premier League football matches in a pub using a decoder device to access the signal broadcast by a Polish company (Polsat). This was at the time an infringement of copyright under section 298 of the 1988 Act because Polsat was not licensed to broadcast within the UK. When the defenders effectively ignored the pursuer's requests to cease such activity, they raised an action for copyright infringement and applied for an interim interdict (injunction) in the local Sheriff Court. In response, the defenders offered an undertaking effectively to stop use of the decoders and smart cards to screen matches at its premises, in return for which the proceedings were dismissed. Despite this undertaking the defenders screened yet another live match via the Polsat signal in response to which the pursuers applied for interim interdict again -- but this time to the Court of Session. And this time an order was granted.
Meantime the FAPL action in England and Wales had been referred to the CJEU, so the pursuers’ action was stayed to await the outcome of that. On 4 October 2011 the Grand Chamber of the CJEU issued its decision in FAPL to the effect that contracts which prevented use of foreign decoders and smart cards were void as a restriction on competition and that EU law in this respect took precedence over the 1988 Act. The defenders applied to have the interim interdict cancelled/recalled, to which the pursuers consented. The defenders also counterclaimed for damages for wrongful interim interdict. The pursuers amended their case to delete the copyright claim and relied instead on the defenders' undertaking as a basis to seek a continuing and perpetual interdict. One of the key questions therefore to be decided was whether the contractual undertaking was still enforceable.
At first instance the court decided that the undertaking ceased to have effect as from the date of the recall of the interim interdict which was later than the CJEU's decision. On appeal there were some quite ingenious arguments run by the pursuers about the meaning and scope of the undertaking. For example it was argued that the undertaking contained no limit in time, had not been withdrawn and contained nothing to suggest it envisaged that it would fall if the unlawfulness that it sought to address were to change. Nor was it envisaged at the time or known by the parties that the interim interdict would be recalled or that FAPL would be referred to the CJEU. The enforceability of an undertaking should not depend upon the recall of an interim interdict which was not foreseen by the parties since, if it did, so this would amount to the court making the parties’ bargain as opposed to just applying it and its terms. The CJEU decision declared the law ‘as it had always been’ i.e. was retrospective. Accordingly if the defenders were correct the result would be that the undertaking had never taken effect at all which was contrary to the parties' contention.
The defenders were able to counter these points and relied on BCCI v Ali  UKHL 8 on construction of a commercial contract which made it clear that a court should be most reluctant to infer that a party intended to give up rights and claims of which it was unaware and could not have been aware. Thus the opposite point to that of the pursuers was being made to the effect that there was no need for the undertaking to have specific wording in it to deal with a situation which was unforeseen. The undertaking had been given not to do something which both sides had assumed was illegal at the time. Once that changed, it was logical that the undertaking should fall.
The appeal court agreed with the defenders and essentially upheld the first instance decision, but considered that the date upon which the undertaking ceased to have effect was as from the date of the CJEU decision on 4 October 2011 and not when the interim interdict was recalled on 12 July 2012. In interpreting the undertaking the appeal court took account of the circumstances in which it had been given, ie in the context of an application for interim interdict to prevent the defenders from carrying out what were at the time illegal acts. The logic was therefore that, if those acts ceased to be illegal, the undertaking ceased to be effective or enforceable.
On a subsidiary point the appeal court also decided that there were enough details in the pleadings on whether there had been breach of Article 101 of the Treaty on the Functioning of the European Union to allow the case to proceed. The case will therefore continue with the defender’s counterclaim for damages for wrongful interim interdict.
This seems to have been the only sensible outcome here as to hold a party to an undertaking when its whole legal basis has been undermined could not be correct. Here such an outcome would have allowed a back door route to continuing to enforce a contract term which was an illegal restriction on competition under EU law and of legislation which was no longer applicable. The fact though that the matter was argued at all demonstrates that it is worth taking care to ensure that such undertakings given in the context of court proceedings are drafted carefully taking all possible developments in mind".