Wright, Johnston & Mackenzie Solicitors

Student faces extradition to US on copyright infringement charges

Westminster Magistrates Court has ruled that a UK student can be extradited to the US to face copyright infringement charges, under an extradition treaty between the US and UK.

The extradition treaty was originally introduced to combat terrorism, but has recently been used by copyright owners in an attempt to raise proceedings against alleged infringers.

In this case, Richard O’Dwyer created a website called “TVShack”, which provided links to other sites where pirate copies of films and TV programmes could be downloaded. At its peak, the site was among the 1,800 most visited websites in the world.

The US Authorities claimed that the website breached US copyright laws and as the website ended with the suffix “.net” (meaning it is routed through an internet infrastructure company based in Virginia) Mr O’Dwyer should be subject to a US prosecution.

It was also alleged that Mr O’Dwyer received over $230,000 from advertising revenue from the website.

The District Judge in the UK ruled that Mr O’Dwyer should face charges in the US regardless of the fact that he had never left the UK and despite no action being taken against him in the UK.

The Judge said that because of Mr O’Dwyer’s actions, there are “direct consequences of criminal activity in the US” and that this, in his judgment, permits a trial in the US.

This case echoes the extradition case of Gary McKinnon, who was named the “Pentagon Hacker” after managing to hack into US computer systems, and who has been spending years fighting extradition to the US.

The iTech team will keep you updated as to the progress of this case.

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Court rules that digitally altered photographs can qualify for copyright protection

The Patents County Court in England has recently ruled that an image that has been manipulated using digital imaging software, for example Adobe Photoshop, can benefit from copyright protection.

Copyright is the protection of the physical representation of ideas. In other words, an idea itself cannot be copyrighted, but the work as a result of the idea can.

Copyright differs from other forms of intellectual property: it is automatic, and there is no official application or registration process to obtain copyright protection. Generally, it is the author of the work who is the first owner, and who benefits from the copyrights attached to the work.

In this latest case, Temple Island Collections Limited (“Temple”) had taken a photo of a red London bus against a backdrop of the Houses of Parliament, which was to be displayed on its goods. Temple had altered the image by draining the colour of the backdrop to enhance the colour of the bus.

New English Teas Limited (“New English”), however, had also taken a similar photograph of the Houses of Parliament (at a later date) to be displayed on its goods, and digitally manipulated it in the same fashion.

Temple then raised an action against New English claiming that New English’s photograph infringed Temple’s copyright in their photograph.

The court had to first decide if Temple’s photograph qualified for copyright protection and second if New England had breached that copyright.

After consideration of the facts, the judge ruled that Temple’s altered photograph was capable of copyright protection as it had an appearance that was the result of “a product of deliberate choices and deliberate manipulations” by Temple, who had expressed “such skill and labour by the particular placement of the features of the photograph, and the visual contrasts as a result of the alteration”.

In other words, the judge considered the ways in which Temple had altered its photograph to be distinctive and original enough to merit copyright protection. Unfortunately for New English, the judge determined that it had manipulated its photograph in the same way as Temple, and had therefore infringed Temple’s copyright. 

This case illustrates that even simple amendments to a photograph can result in the altered image receiving copyright protection. The key issue is that the image contains particular aspects that make it distinctive, even if the image is of a well-known scene.

For more information on this case, or on copyright in general, please contact a member of the iTech team.

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Who owns your social media contacts?

A court action has been raised in the US by media company Phonedog against a former employee in connection with his Twitter “followers”.

Marketing employee Noah Kravitz blogged for the company and the Twitter account he created bore both his and the company’s name.  Whilst he was employed by the company, Phonedog allowed him to keep the account personal, as opposed to a corporate account, as long as he agreed to “tweet” for the company too. The Twitter account @Phonedog_Noah built up over 20,000 followers. 

When Mr Kravitz chose to move on from Phonedog, the company claimed the list of followers was a customer list that it had built, which therefore belonged to the company. Mr Kravtiz disputes this and argues that the followers were his property.

The company is suing Mr Kravitz for taking the followers with him, proposing each one has a value of $2.50 value per month. As such, it is seeking almost $400,000 in damages from Mr Kravitz. 

This is the first high-profile case of its kind, and the decision will likely have massive implications for all companies that use social media.

The iTech team will keep you updated with the outcome.

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Wikipedia causes a stir in protest against copyright reforms

In January, Wikipedia and a host of other high-profile website providers protested against the controversial Stop Online Privacy Act and Protect IP Act in the US, by shutting down their websites for 24 hours.

These Acts proposed shutting down a website if it contained material that breached a third party’s copyright. This would apply even if website owners themselves did not write or post the material, or had no knowledge of the material being posted on their website.

The Acts would have a massive impact on websites like Wikipedia, which is written collaboratively by (largely) anonymous Internet users.

Many in the US protested that the measures proposed in the Acts were too stringent and infringed on the principal of free speech on the Internet.

As a result of the controversy, the US Senate rejected the Acts. It is however expected that a similar bill will be proposed in the near future, as the US government continues its crackdown on Intellectual Property infringement on the Internet.

In the UK, there has been similar controversy over the Digital Economy Act 2010 (DEA). The Act came into force in June 2010 and places obligations on Internet Service Providers (ISPs) to monitor their users’ behaviour and prohibit them from accessing copyrighted material.

As the iTech team reported in October last year, the DEA came under challenge from a number of leading ISPs who argued that it placed unduly onerous obligations on them to police alleged copyright infringements. The case was heard last week, and a ruling is expected within the next month.

In January communications regulator OFCOM proposed plans to tackle copyright infringement on the Internet in a draft code of practice which would give Internet users three chances to stop downloading music illegally. If the user is caught a fourth time, their information (including their name, IP address, and the number of times an infringement has been logged) would be sent to the companies they are “stealing” the music from, who would then be able to raise proceedings against them.

The DEA and proposed OFCOM code of practice are evidence of the UK governments increasing crackdown on copyright infringement on the Internet.

There are likely to be further developments in this area in 2012 and the iTech will keep you updated with these.

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Virgin embroiled in .xxx dispute

In 2011, the iTech team reported on the introduction of the .xxx domain names, which have been introduced for adult content websites with the aim of improving safety on the Internet and to ensure users do not inadvertently enter such sites.

Prior to .xxx domains going on general sale since December 2011, companies and individuals were given the opportunity to prevent themselves being associated with sexually explicit material by registering their brands as .xxx domains.

Richard Branson, however, did not take this opportunity, and is now involved in a dispute in an attempt to gain control of the richardbranson.xxx domain.

The domain name was registered by an individual with no connection to Richard Branson, or his Virgin companies, and in January, Virgin filed an application with the National Arbitration Forum (NAT) in an attempt to gain control of the domain.

Virgin claim that the individual registered the domain name in bad faith and did not have a legitimate interest in registering the domain. If successful, the individual will be required to transfer the domain name to Virgin.

The iTech team will keep you updated with the outcome of the NAT’s decision. For more information on protecting your brand, please contact a member of the iTech team.

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