Lex Ferenda

A representative of Ace Internet Marketing says via email:

I notice that you are a student of law, and being so you should be well versed in the area of defamation, with reference to your blog entry and your mention of our business ace Internet Marketing.

You wrote:
“Ace Internet Marketing copies the full article and posts it on its blog (with no context/discussion/transformative use/anything, not even a proper link to where it came from!).”

I must point out to you the fact that you are incorrect with your claims, as there was a mention or the author and a link was placed back to the original content, the girl who posted this content in question is based in India, she done so with no malice or intention of offending any party. Once we became aware of Mr Mulleys concerns we immediately removed the duplicate content as instructed by the author. She was instructed only to add only content where she had permission, I am currently reviewing all content she added, We have had no other complaints from anyone else and when we do so we will act on all complaints on a case by case bases.

To be honest I have seen many instances of people republishing content, i honestly thought it was ok if the poster mentioned the original author and placed a link to the original content, as far as i know this was done in all instances. If i am incorrect in my assumptions then im sorry for being ignorant on the subject.

Bye all means post anything you like on the subject and certainly point out all short comings we have made and we will endeavor to correct these, but please post truths as this is unfair and is damaging to our good name. I welcome any constructive comments you have on the matter.

I responded as follows:

Dear xxxx,

I see no evidence of defamation in my post. Regarding the republication of the content of others, I suggest you review the Copyright and Related Rights Act and in particular section 37 (rights of the author) and Chapter 6 (exceptions). As you are probably aware, for a statement to be actionable under Irish law it must be untrue. I stand over my comments on the unauthorised copying of Mr. Mulley’s content.

You are aware that the good name of a company is not protected by libel law, right?

Regards,

Daithí

To clarify the last sentence - I am aware that it is possible (although relatively rare) for a legal person (i.e. a company) to bring a libel action - but simply saying something that is merely damaging to the company’s good name is libel understates the test.

I won’t be removing my post.

Incidentally, I continue to believe that a statement of the name and homepage of the original author (note: not even a permanent link to the content) at the foot of an article on a company’s website is not sufficient to sustain an exception to copyright law. Obviously Ace believe this too as they have deleted the original article. It is amusing, then, that they threaten libel action against me for saying something that they accept to be true.

Bizarre exchange in the House of Commons (Monday):

31. John Mann (Bassetlaw) (Lab): How many people have been killed by falling gravestones in church graveyards in the last 20 years. [160985]

Mr. Gerry Sutcliffe (Bradford, South): The number is not recorded centrally but I understand from the Ecclesiastical Insurance Group, which insures almost all Church of England churches, that it has received no claims relating to such fatalities in the last 10 years—the period for which figures are available.

John Mann: Why is it, then, that hundreds of thousands of gravestones across the country are being staked, as if they were a health and safety risk? Across the country, only two deaths have been caused by gravestones in the past 28 years. Should we not investigate precisely why local authorities and churches are taking such an absurd decision?

Mr. Sutcliffe: My hon. Friend raises a fair point, which I will take up with my hon. Friend the Member for Middlesbrough.

(Transcript here

It’s turning out to be a bit of an IP week…

Bill McGeveran reports on Avis, the car hire people, and their utterly unreasonable legal letters to blogger Eric Turkewitz (of the NY Personal Injury blog, mentioned in my Blawg Review earlier this month - a great blog). Turkewitz wrote about a case where the constitutionality of a particular law that deals with liability and rented cars was under discussion. He illustrated the post with logos of two well-known rental companies, Hertz and Avis. Avis wrote a letter complaining about the use of the logo (pictured, right), including the aggressively condescending remark (to Turkewitz) that: “understandably, trademark law is not within your area of expertise. Therefore, we trust that this was done out of ignorance and not based on an intent to misuse our mark to the benefit of your personal injury practice”. Yes. I’m sure that Eric’s practice income has gone through the roof since using an Avis logo in an article about the car rental industry. I hear that he’s just bought Mozambique with the profits.

Anyway….

Thankfully, after seeking advice (and some good comments on other IP blogs), Mr. Turkewitz has written back to Avis. In stylish form.

In one of those nice coincidences, on the same page in my feedreader I found this very relevant post from the Citizen Media Law Project - a report on the BidZick case (their logo is pictured here, too). It includes some (in my opinion unsatisfactory) speculation on bloggers-as-journalists (I’m not saying that I disagree with the conclusion - but it is hardly a model of clarity and the random reference to CNN BLOGS: YOUR SAY is equal parts baffling and pointless), and thankfully stumbles to the conclusion that the use of the trademark was acceptable. This is the right result, I would say, although it would be better, in policy terms, to have a clearer exemption for news / discussion / comment / criticial / analytical / secondary use (i.e. y’know, free speech!) rather than trying to fit things into a ‘news reporting and news commentary’ framework. And as I say, if this is what courts think of the bloggers-are-journalists debate, we’re in more trouble than we thought. It is right to be glad that BidZick’s pathetic attempt to squash criticism has been kicked out of court, but also necessary to note the weaknesses in the court’s dealing with the matter. (I’ve reproduced the relevant portion of the grant of summary judgement after the jump; read the PDF here).

All trademarks used in this post are for the purpose of illustrating the discussion and not to sell the product. Bite me.

Read more »

Look at this, Damien writes a post and a company by the name of Ace Internet Marketing copies the full article and posts it on its blog (with no context/discussion/transformative use/anything, not even a proper link to where it came from!). In fact, their entire blog appears to be made up of scraped content. And as we know, even those who agree with wide fair use laws, commons-based approaches and so on know that scraping other content and shoving it on your commercial site is quite stupid.

I was going to add a comment to the post wondering why this was, but it seems that they have disabled comments. On the so-called ‘blog’. Well, that’s a shame.

Unfortunately, they didn’t disable trackbacks. So if for example, I was to say something like Ace Marketing are engaged in disreputable business practice through copying other content and seeking to profit from it (with the appropriate link), that might appear on the site.

It would be a real shame if anyone else had this idea, wouldn’t it?

Torontoist has a fun post about the two sides of the Toronto Star competing for the affections of the reader - an industry-sponsored ad supplement on how counterfeiting is evil, and a fashion page article on how to buy ‘good fakes’. Heh heh.

Nothing like the confusion suffered by someone in the poor Sunday Tribune here in Dublin, though; the following notice appeared (in an out-of-the-way side location) in Sunday’s print edition:

Correction: London Review of Books, Anne Enright

WE published “Diary” by Anne Enright in the Sunday Tribune ed. of 21 October 2007 without permission of the London Review of Books, Anne Enright or her agent. We accept that the author did not wish the piece to be republished. We apologise to Anne Enright, her agent and the LRB for this error and breach of copyright.

Ouch. They did, in fact, publish the entire essay. I’m sure there’s some context to this but to publish a lengthy self-contained full article without permission from author, publisher or agent seems a little detached from reality…

It has been another strange week for freedom of expression. (The last roundup of this sort of perfect storm was back here in September).

In Ireland, the decision of a Divisional High Court on proceedings brought by the Mahon Tribunal against the editor of and a journalist with the Irish Times. The paper, unsurprisingly, is not cooperating with an investigation into documents leaked to it.

The decision of the High Court (PDF here) is causing quite some concern to the Irish media and to commentators. See, e.g. Roy Greenslade, Blurred Keys. In short, the High Court ruled that the journalists were required to disclose information to the Tribunal, finding that the expression/media rights were outweighed by the need to preserve confidence in the tribunal. So far, so Irish.

I do think, though, that the language causes some concern - after reciting the familiar ECHR cases, we end up with things like:

As the history of these cases show journalists should have little to fear and certainly no grounds for thinking that their right not to reveal sources does not or would not be given just consideration and vindicated where appropriate.

(”Nothing to fear” is not something that Irish journalists have ever said. Need I remind you that Ireland’s constitutional free speech/press/expression/communication guarantee is (textually) very limited and wasn’t successfully used to strike down a statute until this year…)

Against this background the deliberate decision taken by the defendants to destroy the documents at issue in this case after they had received a summons to produce these to the Tribunal and after having taken legal advice, is an astounding and flagrant disregard of the rule of law

(Ouch)

It need hardly be said, that such a manner of proceeding is anathema to the rule of law and an affront to democratic order. If tolerated it is the surest way to anarchy.

Journalists must realise that paying lip service to democratic values is not enough.

(Using this sort of language disturbs me, especially given the wide scope given to the State to protect ‘public order’ - if journalistic practices are defined as tending towards anarchy, it can only make further restrictions easier to defend?)

The case is disposed of through applying the Convention ‘necessary in a democratic society’ test, although it seems to be more of a discussion than a test, and (astonishingly) the word ‘proportionality’ does not appear in the judgement. I had to check three times to see if I was missing something - but apparently, yes, this is 2007 and we can discuss restricting Article 10 rights without mentioning proportionality. Silly little me.

Another thing that puzzles me, and I can’t figure it out, is how the discussion on freedom of expression is entirely related to the Convention, and although it’s clear from the recital of the pleadings that Article 40.6.1 was presented to the judges, it is not mentioned or even alluded to in the discussion. Are we to assume that the Court didn’t even see the point in trying to address the constitutional claim, given the ease with which they found the actions of the tribunal in accordance with the (commonly understood to be further-reaching) Convention right?

In Strasbourg, the European Court of Human Rights itself was announcing its decision in a long-running case that started off as being a dispute between French fascists on one hand and an author and the leftish newspaper Liberation on the other. The case is Lindon, Otchakovsky-Laurens and July v. France. It’s a little hard to understand how this was so easy to treat as a crime - the novel in question is a satire (albeit one attacking the Front National quite vehemently). After the courts came down hard on the author/publisher of the book, 97 authors signed an article in Liberation criticising the decisions and agreeing with some of the anti-Le Pen comments. Yes, you’ve got it, the newspaper ended up in court too. I’m sorry to say that the Court did not find in favour of the authors, publishers and newspaper, as it was necessary in a democratic society ‘in order to protect the reputation and rights of Mr Le Pen and the Front National’.

We do have the consolation of the concurring opinion by Judge Loucaides, though, who says (thanks to contentandcarrier for spotting this!) that “the suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and improves the overall quality of public debate through a chilling effect on irresponsible journalism”. Apparently a chilling effect is a good thing now! William Brennan rolls in his grave. Eep.

And finally, in the UK we have this fabulous speech by Gordon Brown, a wide-ranging talk (including announcements, history, philosophy, law and more) that included a commitment to softening the law on protests near Parliament and more. This speech is a must-read; you must read it. (Let’s see what action comes out of it, though!)

You Own Your Own Words is one of those phrases that means a lot to those who (being a little older than I) are veterans of Ye Olde Internet. Associated in particular with The Well, YOYOW meant two different but interlocked things - you take responsibility for your own opinions, and you continue to *own* them (in the sense that The Well didn’t claim copyright, and you could go off and raise hell if said words were used elsewhere without your permission). (More on the history here).

That was then, of course. Lighting up the blogopuddle today, though, is an illustration of how easy it is for someone else to OYOW. John McCain has been using a clip from a debate in a political advertisement (the clip being his own words and nothing else), but apparently Fox is not happy, and has written threatening letters to put a stop to it (we presume they mean TV and Internet use - it’s available on both). They claim that fair use cannot apply because it is for ‘commercial’ use (come again?), and even persist in the complaint despite the (significant) free advertising through the on-screen logo/credit (a prudent inclusion by the McCain folks, one would have thought?)

More from the New York Times ‘Caucus’ blog here; watch the ad (for the time being) here. Note, of course, that I don’t actually agree with the point McCain is making in the ad, although that is irrelevant.

Precedent: The new rules of law and style is Ontario’s first independent legal magazine for young lawyers. We’re stylish, fresh, and a little bit irreverent. Mixing law and lifestyle, Precedent brings you legal news, fashion, entertainment — all with a sense of humour. We think it’s exactly what lawyers have been waiting for.

*via Ted Tjaden at slaw.ca

Without any comment on whether lawyers have been waiting for it, or whether the magazine (or young Canadian) lawyers are indeed stylish, fresh, and a little bit irreverent, do head over to lawandstyle.ca and check out Precedent (”The New Rules of Law and Style”) for yourself. This stuff seems like an advertiser’s dream. I love this picture, though.

British newspapers are (unsurprisingly) full of discussion of the European treaty (not a constitution, don’t forget)*, but today’s law section in the Times contains an article on an ongoing interesting issue of European law and British opinions, and one that I have a lot of interest in, being the Audiovisual Media Services (AVMS) directive.

Graham Smith (a London lawyer) is a very prominent figure in British IT law (the fourth edition of his opus on Internet Law and Regulation is just out); his piece in the Times summarises the debate over the AVMS directive, highlighting how ‘TV-like’ content is dealt with. Read the article here

The key paragraph is this:

Broadcast content regulation is an anomalous relic of the old days of spectrum scarcity. If convergence is thought to demand platform neutrality in content regulation, it does not automatically follow that it should be achieved by extending the remit of Ofcom. On the contrary, it can be achieved by rolling back broadcast regulation and subjecting the freed-up content only to the general law. If that is not palatable, the answer is not to extend broadcast regulation into areas in which it has no business. It is to refrain from seeking full platform neutrality in content regulation.

Which, while being a relatively orthodox statement of the anti-regulation argument, is interesting for how he deals with the neutrality question. (I should also note that Smith is careful to point out that those services not regulated by ‘broadcast content regulation’ remain subject to what he calls ‘the general law’ (on things like hate speech, etc), rather than getting trapped in the ‘regulation vs no regulation’ fallacy. However, he does try and position opposition to broadcast regulation in general as in the tradition of Milton, which I don’t buy, and neither should you - there’s more to it than that).

For an interesting counterpoint, see the argument (linked from this article!) by Smith’s colleague at Bird and Bird, Richard Eccles, that new European laws on Internet telephony/VoIP are necessary.

* always reminds me of the classic Zig and Zag video, “Nothing To Do With Toast”.

I’ve been reading the first chapter of a book that’s just been published (last month), Buying Social Justice: Equality, Government Procurement and Legal Change. The author is Prof. Christopher McCrudden and the publisher is OUP (complete with their distinctive typesetting that makes even a new book look venerable and moderately ancient!). The book, as the title indicates, tackles the question of how governments can, do and should use their role as purchaser of goods and services to achieve certain goals (social, geopolitical, etc). (For those veterans of student politics in my world, I’m sure memories of lengthy debates on student-run shops refusing to buy from company X are flooding back straight away - but don’t let that put you off!) So we’re talking about things like minority setaside contracts, disability/accessibility standards, boycotts, gender targets, EU procurement rules, sustainability/ethical tradigin, and a whole lot more. (McCrudden is, as I read it, disagreeing with the critics (legal and economic) of socially aware procurement policies, and indeed arguing that they can have an impact, although I’m sure I’m simplifying far too much).

The author is giving a talk on the topic at the Said Business School in Oxford this week, too.

And here, as promised, via SSRN, is the first chapter .