Pirates steel Microsoft's Halo

There has been considerable publicity this week in the media of Microsoft's attempts to prevent leaked copies of the new XBox title "Halo Reach" from being downloaded. HaloReach is a hotly anticipated new release on XBox due out on 14 September 2010. The game is produced by developer Bungie and the Halo video game series has been one of Microsoft's flagship franchises. However last week pre-release copies began to appear on file-sharing web sites such as the Pirate Bay and then videos began to appear on You Tube.

It is not known for certain how these versions of the new game appeared on these sites but there are suggestions that copies of the game were provided to reviewers via a Games on Demand download instead of mailing it out to reviewers. Although processes were put in place to stop the public from downloading the pre-release review copies it is believed that hackers have found a way to beat the system.

Nick Kounoupias, Partner notes that this is not the first time that Microsoft has faced problems of games piracy on XBox. Last year thousands of gamers were disconnected from its online gaming service "Xbox Live" for modifying their consoles to play pirated games. Microsoft have said that they will be able to detect anyone using a pirate copy of Halo Reach and if so it is likely that similar steps will be taken to disconnect those gamers from XBox Live.

Online Piracy continues to plague all those involved in the creation of digital content. The challenge is to stay ahead of the pirates but this incident again displays the difficulties in meeting that challenge.

BlackBerry makers working with India to prevent "shutdown"

It looks as though BlackBerry makers Research in Motion (RIM) and the Indian authorities are close to reaching a workable solution to India's "security concerns" in order to prevent shutdown of the service in India.
As we reported earlier this month, RIM has been embroiled in a long running battle with various international authorities - including India, the United Arab Emirates, Kuwait and Saudi Arabia - based upon RIM's refusal to give them access to secure communications sent via its systems.
However, it seems that RIM may have moved just in time to prevent the impending shutdown. The Wall Street Journal reports today that Indian government is hopeful that the "access issues" will be resolved in advance of the 31 August deadline and it claims that RIM has already provided solutions for the monitoring of a number of its services - including voicecalling and short messaging - which have, it claims, already been made available to security agencies.

As to the apparent targeting by the authorities of the BlackBerry system, when so many other systems, gmail included, use similar technology, RIM's view is that "singling out and banning one solution such as the BlackBerry solution, would be ineffective and counter-productive". RIM seems keen to throw the spotlight in the direction of other telecoms firms, offering to lead and industry forum, to include participation by a number of other telecoms firms, "focused on supporting the lawful access needs of law enforcement agencies" - to address what it deems to be an "industry-wide" problem.

So will all this be enough? It's only a matter of days before we will find out...

Sun breaks through the clouds for parallel importers

There is ever a tension between the rights of trade mark owners to control the first marketing of their goods within the European Economic Area (“EEA”), and the rights of those trading in the grey market. This tension was intensified yesterday following a decision by the English Court of Appeal in a dispute between Sun Microsystems Inc v. M-Tech Data Limited.

Trade Mark owners – and their lawyers – have for some time felt comfortable in taking action against those importing branded goods into the EEA which had not been first placed on the market within the EEA by the trade mark owner (or with its consent). We had all assumed (as supported by the well-honed trade mark skills of Mr Justice Kitchin, who heard the case in the Chancery Division), that the so-called “Euro-defences” based on EU competition laws were not readily available to the parallel importers. It seems that in some circumstances they might be.

Sun (now Oracle) was trying to prevent the vast trade in second hand Sun hardware which was being imported from outside the EEA. However, the practices it deployed in an attempt to stifle that trade, have potentially enabled M-tech to deploy some “Euro-defences”. For example, Sun refused to publish its database of serial codes enabling resellers to identify whether goods were first market in the EEA with the consent of Sun or not. This, combined with the aggressive pursuit of resellers through litigation, enabled the lawyers for M-Tech to present an argument that this behaviour was anti-competitive as its effect was to prevent the attainment of a single market in the EEA for legitimate trade in Sun products - which had been first marketed in the EEA with the consent of Sun.

The decision was made following an attempt by Sun to obtain early judgment. Tim Ashdown, Partner at DMH Stallard comments that "assuming it is not settled, the case has a way to go until trial and may well then be the subject of a reference to the ECJ. The downside of all this is the potential uncertainty – and legal expense - created for brand owners attempting to prevent parallel imports by legitimate means. Trade mark owners pursing legitimate infringement cases, now risk getting stuck in a quagmire of casually deployed Euro-defences."

However, the judgement is a useful reminder to trade marks owners that they might usefully consider assisting resellers in attempting to identify which branded goods they can legitimately re-sell in the EEA, either by marking goods or publishing other such data.

The importance of being (properly) licensed.

Many new media offerings dream of being the next YouTube, with massive public recognition and (relative) financial success, but even YouTube has faced continual problems in tackling IP issues. Now, a new entrant to the market - SoundCloud - which allows users to share their home-made music tracks online - is aiming to sidestep this potential minefield through close collaboration with non-profit creative licensing body Creative Commons.

Creative Commons offers a range of licences, giving the home music creator (or software developer, writer, etc) a chance to package his or her creation with a licence that is both legally valid, and which outlines precisely how much control the creator is willing to permit others over his or her work - the options range from allowing others to use material for non-commercial purposes only to allowing material to be used only in non-derivative forms.

As a result of its ever closer union with Creative Commons, SoundCloud is now offering its users a dedicated search page from which they can find music tracks shared under a Creative Commons licence, and use them for remixes and other creative endeavours, comforted by the knowledge that they have permission from the track’s copyright owner - it seems therefore, that SoundCloud encourages its users not only to keep a careful watch over their own IP rights, but also to have due regard to those of their fellow music-makers.

Encouraging new musical talent and raising awareness of IP issues in the music industry is without doubt a worthy cause, but it is worth sounding a note of caution here. Creative Commons’ free licences are a good first step, giving music-makers a helping hand in determining how they want their creations to be used and shared -but ensuring the full protection of the IP rights of authors, composers, and owners of sound recordings and dealing with infringement of those rights, is a complex area, especially for those who achieve any measure of commercial success...

Wondering where your friends are on a Friday night? Log into Facebook and you might just find out..

We posted an article in July discussing the Facebook application "Bambuser" raising fears about privacy issues. Facebook has since gone one step further with a new application for the iPhone - "Facebook Places". People can now actually broadcast their location to their online contacts. In a recent Facebook blog, Michael Eyal Sharon, the "Facebook Places" product manager, commented "If you're like me, when you find a place you really like, you want to tell your friends you're there. Maybe it's a new restaurant, a beautiful hiking trail or an amazing live show. Starting today, you can immediately tell people about that favourite spot with Facebook Places. You can share where you are and the friends you're with in real time from your mobile device".

This may seem fairly innocent and possibly quite useful for those wanting to meet at the pub on a Friday night... but the question is whether you really want other people updating your location for you? This new service enables your friends to tag you at the same place (as you tag with photos), but only if your settings allow them too. So, if you don't want people to know where you are, make sure your privacy settings are set up correctly...

Copycat? or just plain Pottie?

The BBC reported last week that Ricky Gervais should expect a claim for alleged copyright infringement - issued by John Savage, author of "Captain Pottie's Wildlife Encyclopaedia -  to land on his doorstep.

The claim is based on Savage's contention that Gervais' book "Flanimals" is based on his "Captain Pottie's Wildlife Encyclopaedia". Mr Savage is reportedly claiming infringement of both his artistic and literary copyright in the book - a claim which Ricky Gervais strongly denies.

Joanna Potbury, specialist in IP infringement claims, notes that in order for Mr Savage for succeed in the claim, it will be necessary for him to prove that a substantial part of his original work has been copied. So just how similar are the works? Let's wait and see what the High Court has to say...

Time to change your name?

Is it time to change your name to escape your online past? It might come to that according to Google CEO Eric Schmidt.  Click here to "have your say".

 

ITV keeps an ‘i’ on Apple’s TV plans

British broadcaster ITV has indicated that it will oppose Apple’s rumoured plans to rename its Apple TV  "iTV" (its previous work-in-progress title) when launching a new version of the product in the autumn. This rebranding, it it were to go ahead, would consolidate Apple’s product line, which includes the iPhone, iPad, iPod and iMac.

ITV has responded to these rumours, claiming that it has many trademarks for ‘ITV’ and would “vigorously defend” its IP – as it claims it has done many times in the past – if Apple were to attempt the rebrand. Technology website Pocket-Lint has reported that ITV has confirmed that it would not consider licensing the brand, as this would “muddy the waters”.

Considering ITV’s current financial difficulties, some might suggest that doing a deal with Apple mightn't be the worst suggestion – Cisco agreed earlier this year to license the trademark ‘iOS’ to Apple for use as the operating system running the iPhone and iPad.

Of course until the "iTV" story is confirmed, this is all conjecture. In the meantime, perhaps we should direct our attention to a similar battle which has apparently been raging for the past five years between BSkyB and Skype over the three letters their names share - suddenly the ITV/iTV story doesn’t seem quite so fantastical.

Will BlackBerry makers back down over security concerns?

BBC News reports today that India is the latest country to join the queue of complainants in a long running dispute between BlackBerry makers Research in Motion (RIM) and a number of international authorities, including the United Arab Emirates, Lebanon, Algeria, Saudi Arabia and Kuwait.

The dispute centres around RIM's refusal to give the authorities access to monitor messages, emails and other communiations sent from BlackBerry handsets - which are sent via "virtually uncrackable" encryption technology - the very foundation of the BlackBerry brand. This, it is considered, poses a significant national security threat.

The Indian authorities have given RIM until 31 August to give them full access to its services, "or face being shut down". Given RIM's stance on this issue to date - that no third party may have access to the information sent via its network - it would be surprising to see RIM back down now. However, with an estimated 1million BlackBerry users in India, will RIM be looking to compromise? And as to why the BlackBerry has been singled out when other systems such as gmail use similar encryption technology...views are starting to form, but for now, it remains a mystery.

Kimberly Wells, Solicitor, DMH Stallard LLP

 

Think before you Tweet?

Whilst both Facebook and Twitter are fantastic means to stay in touch with all your friends and keep your social diary full or to use as a business tool, they should come with a libel health warning as recently highlighted by the tweets made (supposedly?!) from Gillian McKeith's account in respect of Dr Ben Goldacre's book "Bad Science".

McKeith isn't the first. Courtney Love got there a year ago using her Twitter account to embark upon "an obsessive and delusional crusade". And, a law student who was dubbed "paedophile" by a former friend who posted child porn on his Facebook page won £10,000 libel damages earlier this year. What was interesting about the McKeith situation was her ill-fated attempts to distance herself from the comments.

First it was emails, with users often caught out in the early days because of the seemingly informal nature of the medium.  Now it's social networking with Twitter in excess of 20 billion tweets and Facebook with over 500 million users.  People shouldn't forget that statements made online are permanent and personal attacks aren't immune from the law. McKeith is another reminder that what goes into cyberspace -- especially in the heat of the moment -- could well come back to haunt you.

Sarah Cook, Solicitor, Dispute Resolution, DMH Stallard LLP

IP Kat tells you how to write an IP press release

The IPKat is running a seminar which will look at the aims of a press release and how to identify them; providing the right information; expressing it clearly; targeting recipients and monitoring responses. For more info, click here: How to write an effective IP press release.

Changes to Adwords policy

Following a ruling by the European Court of Justice in March this year, advertisers on Google will be able to link their ads to searches for branded terms which do not belong to them. It is extending this policy across the board from 14 September 2010. However, if a trade mark owner complains to Google regarding an ad and Google agrees that complaint is valid, it will automatically remove the advert.

Both users and trade mark owners are likely to see benefits from this change. Add your comments below or follow the discussion on TomiLaw's page on LinkedIn.

Joanna Potbury, Associate, DMH Stallard LLP

Social Networking Map

We like this map of the social networking world.

Massive Burying at Digg

A group of members on Digg - the influential social media site - have been exposed "burying"more than 90% of the articles by certain users and websites submitted within 1-3 hours.

Will Ofcom wipe the Canvas clean?

Virgin Media has lodged a complaint with Ofcom regarding "Project Canvas" - a proposed joint venture between the BBC, ITV, Channel 4, BT and Talk Talk, the purpose of which is to develop an open technical standard for internet TV in the UK .

The crux of Virgin Media's complaint is that it regards the proposed venture as being anti-competitive - in its view,  three prominent public sector broadcasters in a joint venture would "significantly and irreparably harm" the TV sector. Virgin's specific complaint centres on the standard and the specific requirements it has placed on providers in relation to the on-screen user interface, which Virgin Media has compared to National Health spectacles.

The Project is still very much in the development stages but has three main elements - the standard itself, the technical platform and the user experience.

So will Ofcom launch a full competition enquiry? Let's wait and see: it's got two months to decide...

Mohummad Mia, Trainee Solicitor, DMH Stallard LLP

What your online behaviour says about you

An Opinion on online behavioural advertising (also referred to as behavioural targeting) by the EU Article 29 Data Protection Working Party was released recently.

The party gives advice about the level of protection in the European Union and third countries. Its Opinion deals with the privacy implications of online behavioural advertising and seeks to clarify the data protecton legal framework applicable to those who engage in such advertising. Online behavioural advertising involves the tracking of individuals' online behaviour over time, for example, sites visited, interactions, keywords and online content and the use of the information gleaned by the tracking process to develop specific user profiles which enables an organisation to conduct targeted advertising.

The purpose of the Opinion is to provide a useful guide to stakeholders (particularly network providers and publishers)  to complying with the applicable legal framework, as interpreted in the Opinion. It also calls for the industry to put forward technical and other means by which to enable compliance with the legal framework and has invited further discussion from interested stakeholders. At the end of the discussion period, the Working Party will take "appropriate measures" -  although what those measures might entail remains to be seen...