27 November 2009

Romanian Constitutional Court abrogates data retention act

The framers of the Data Retention Directive must have underestimated several factors in the course of its subsequent implementation. First Ireland brought a challenge before the ECJ then Austria still shows totally reluctant to implement. However, the big bang is currently unrivalled owned by Romania! This country’s Constitutional Court is the first to deliver a ruling that declares an act implementing the directive into a member state’s law unconstitutional.

Prof. Ioan Vida, Romanian Constitutional Court. Courtesy to BOGDAN MARAN / MEDIAFAX FOTO.

Now, after Dracula and Johnny Weissmuller, Romania has, in the person of Prof. Ioan Vida being the President of the Romanian Constitutional Court, good chances to be awarded a third VIP contribution to the world!

Basically, the Court pointed out that the law on data retention interfered with following articles of the Romanian Constitution: Art 25 Freedom of Movement, Art 26 Intimate, Family and private life, Art 28 Secrecy of Correspondence and Art 30 Freedom of Expression. In addition, the Court examined Art 12 of the Universal Declaration of Human Rights (UDHR), Art 17 of the International Covenant on civil and political rights (ICCPR) and Art 8 of the European Convention on Human Rights (ECHR) and found them affected too.

The Court recognized in its reasoning that neither the Romanian Constitution nor the ECHR prohibited state authorities to interfere with the rights mentioned above on a general scale. However, the Court, relying upon the judicateure of the European Court of Human Rights (ECtHR) in Klass vs Germany and Popescu vs Romania, opined that such interference was permissible only within a narrow path, fenced by sufficient safeguards to protect a person against arbitrary acts of state authorities.

The Court further opined that the legislator has created uncertainty because it used terms in the act that were either not or only ambiguously defined. Such uncertainty was contrary to the drafting techniques which the legislator was required to employ in the course of legislation.

Finally, the Court addressed critically two more issues in the act on data retention. The first critic dealt with the breadth of applicability of the act’s provisions – they were not limited only to wrongdoers, but covered also innocent bystanders. The second regarded the lengthy period of time for which the data were to be retained.

The entire above put together just fortified the majority of Court’s members to vote for the abrogation of the act.

Now, before the opponents and fighters of data retention fall in a state of euphoria, one has to consider that the Court did not reject the act per se. Quiet the contrary! To me, this ruling reads as a cooking recipe directed to the legislator. The recipe contains an enabling set of hints and aims to support the legislator to successfully implement that act later on.


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25 November 2009

Austrian National Railways must not restrain an ISP to use their infrastructure

Silver Server, an Austrian ISP, approached the National Railways of Austria (ÖBB) and requested access to their infrastructure, particularly their communications lines. Silver Server grounded their request on the joint-use right as outlined in Articles 8 and 9 of the Austrian Telecommunications Act 2003. Upon ÖBB’s refusal Silver Server referred the case to the Telecom-Control Commission (TKK) which regulates the Austrian telecommunications market.

In its recently issued decision, the TKK held ÖBB liable to grant Silver Server access pursuant to their request. In accordance with Austrian administrative law, TKK’s decision serves as a so called “contract substituting ruling”. For this reason the TKK has employed great detail in drafting and has for a first time in a matter of joint-use provided for precise conditions (e.g. definite rental price) and a share of responsibilities (e.g. performance guarantee, maintenance obligations) between the parties.

The decision is noteworthy because it extends the scope of the Telecommunications Act beyond the sector of electronic communication and affirms its applicability also to somewhat unusual market players such as the national railway company.

24 November 2009

The US cares for data protection

IMG_1458photo © 2011 John Taylor | more info (via: Wylio)


Well, I agree the title of this post reads somewhat provocative. Nevertheless, it is driven by the criticism that European data protection practitioners usually express towards their US colleagues’ approach when dealing with privacy and protection of personal data.

This should not surprise as the right to privacy is a highly developed area of law in Europe. Accordingly, the European Union has long had a privacy framework for the processing of personal information that is different – and more restrictive — than privacy practices in the US. By contrast, the United States prefers what is called a “sectoral” approach to data protection legislation, relying on a combination of legislation, regulation, and self-regulation, rather than overarching governmental regulations (see “A Framework for Global Electronic Commerce“. To date, the US has no single, overarching privacy law comparable to the EU Directive.

The EU Data Protection Directive requires EU member states to provide for legislation that prohibits the transfer of personal data outside the EU. However, there are some exemptions from that rule, one of which applies where the EU has determined that the laws of the country of destination provide “adequate” protection for personal data. Among others, Switzerland and Argentina were determined to be such countries. In the late 1990s, the EU determined that the laws of the United States did not meet its adequacy standard.

However and in order not to totally prohibit the personal data transfer between the largest economies, the US Department of Commerce in consultation with the European Commission developed the “Safe Harbor Arrangement”. As a consequence, US companies that are under the jurisdiction of the Federal Trade Commission or the US Department of Transportation may enrol to that arrangement and process personal data submitted by European partners (subsidiaries) of theirs.

A company under the FTC’s jurisdiction that self-certifies its compliance with the Safe Harbor Arrangement, but fails to observe them may be subject to an enforcement action under Section 5 of the FTC Act, which prohibits unfair or deceptive trade practices.

After a decade without any enforcement actions, the FTC recently proceeded against seven companies and obtained consent orders against them.

While these actions by the FTC are said not to represent substantive enforcement within the Safe Harbor Arrangement, they do signify that companies need to be even more vigilant about the content of their privacy policies and marketing assertions.

23 November 2009

Keyword advertising actionable under privacy law?

Debates on the use of keywords that equate registered trade marks have brought  new challenges for legal professionals. As well-known, the majority of lawsuits on keywords advertising were based on alleged trade marks infringement.

However, the courts’ ambivalent treatment of such trade marks proprietors’ claims (see Google AdWords Litigation update for the US and Advocate General  Poiares Maduro’s opinion on Google’s AdWords to the ECJ for Europe) might have brought a Wisconsin law firm to observe this set of problems through a different angle.

Representatives of Habush, Habush & Rottier have discovered that when their law firm’s name is sought over internet searching engines, the name of Cannon & Dunphy, a rival law firm, showed up. Accordingly, Habush have filed an action against the rival who does not even deny the purchase of a keyword containing claimant’s name. However, whether based on reasons stated above or not, Habush is not willing to rely on trade marks law, but on Wisconsin’s law on privacy.

In my view a really promising case. We will see as to whether it will bring some freshness into the keyword advertising complexity.

22 November 2009

Data retention in Austria becomes even likelier

Austria’s DerStandard informs that the data retention bill to amend the existing Austrian Telecommunications Act was in place. In a consultation procedure, the responsible minister Doris Bures has called upon the appraisal of the participants (eg regional authorities, chamber for commerce and industry, trade unions). She thereby vowed to apply “the highest standards under the rule of law” in drafting the bill.

Austria has not implemented the data retention directive yet, wherefore the European Commission threatened the government with the launch of infringement proceedings. Austrian politicians have used the data retention related set of problems in their last election campaign in 2008. For some period thereafter and, since the subject matter is highly controversial, no one appears willing to cease the delay in implementation.

Quite often, the enforcers of intellectual property rights have been viewed as the real beneficiaries of the data retention becoming a fact. Many of their lobbyists and legal representatives utilized the duration caused by the governmental delay in addressing the public and stating the necessity to access retained internet traffic data that evidences, for instance, illegal file sharing.  However and given an implementation, it is still unclear as to whether such enforcers shall have access to data so retained.

According to recent cases on file sharing, Austrian courts seem to opine that file sharers’ interest in the protection of their traffic and identity data outweighs the enforcers’ interests to access such data.

It is clear that the data retention could easily change the so established balance. I hope to soon have certainty on that.

21 November 2009

Facebook faces class action for fraudulent game practices

YoVille Monetization Structure and Strategyphoto © 2009 i a walsh | more info (via: Wylio)

Do you have an account on Facebook? And are you probably tired of reading messages like “your friend XXX just won first place on Fraternity’s Drinking Bout”*? Well, such messages are likely to disappear or at least become less in future.

The reason behind is that Facebook and its social network games’ supplier Zynga are currently facing a class action for having fraudulently lured social networks users to lose money in online games, ads and quizzes.

The lead claimant in the case is a woman named Rebecca Swift, who has been charged over $165 as a result of accepting a “free” ad offer in exchange for YoCash usable in Zynga’s YoVille virtual world. She claims neither to have accepted an offer nor to have acted in an intent to be legally bound.

Both defendants counter that the ad offers in suit were provided by outside undertakings for whom they were not liable. The claimant, however, alleges the defendants displayed the fraudulent offers knowingly and were thus liable.

The suit seeks to obtain upwards of $5 million in damages.


*The game’s name is absolutely fictional.

19 November 2009

CFI rejects "CANNABIS" trade mark’s registration for beverages

photo © 2006 olga.palma | more info (via: Wylio)

In its judgment delivered today the Court of First Instance dismissed Giampietro Torresan’s appeal against an earlier decision of OHIM‘s Cancellation Division. OHIM’s decision had declared the (previously obtained) registration of the Community trade mark

“CANNABIS” invalid

with respect to goods in Classes 32 (beers) and 33 (alcoholic beverages except beers) of the Nice Agreement. In its decision OHIM found that the trade mark “CANNABIS” was descriptive in terms of Article 7(1)(c) of Regulation No 40/94.Curiously, it was the same OHIM that registered the word sign “CANNABIS” as a Community trade mark for beers, wine and spirits some years ago, namely on 16 April 2003.

However, few weeks thereafter the German Klosterbrauerei Weissenohe GmbH & Co. KG, applied to OHIM to declare the trade mark’s invalidity with regard to Classes 32 and 33. OHIM found in favour of the Germans, Giampietro then appealed and – eventually – lost.

These are the facts. Much more interesting are the findings of the CFI.

The Court pointed out that

“Cannabis” or “Hemp” Had Three Possible Meanings

(1) a textile plant which is subject to very strict legislation as regards the content of it active ingredient (tetrahydrocannabinol: THC); (2) a narcotic which is prohibited by a great number of Member States; and (3) a substance the therapeutic use of which is under discussion.

The Court then pointed out that cannabis, given its very low concentration of THC, was used in the food sector. Equally important, the word “cannabis” was a Latin scientific term which was well known, was present in a number of European Community languages and has had a lot of media coverage. Based on that, the Court opined that the average consumer would perceive the trade mark

“CANNABIS” As A Description

of one of the characteristics of the goods bearing that mark.

The Regulation on Community trade marks prohibits the registration of descriptive signs. Such signs are deemed incapable of fulfilling the indication-of-origin function which forms an integral part of a trade mark. The Court finally went on applying ECJ’s well established authority on the assessment of a mark’s descriptive character that is to be undertaken in relation to the goods for which the mark was registered and in the light of the presumed perception of an average consumer of those goods, who is reasonably well informed and reasonably observant and circumspect (eg Nestle SA vs Mars UK Ltd).

Having read this ruling, I made a quick research using OHIM’s search engine. I sought for registrations containing the

Word Combination “Mary Jane”

and, found 5 matches. Two of them are registered in the Class 32 and one in Class 33.

By the way, what would be the “well informed” and “reasonably observant and circumspect” consumer’s perception of “Mary Jane” on beer or liquor bottles?

18 November 2009

Microsoft found liable of infringing chinese patent

I bet that President Obama did not like this message during his visit in the People’s Republic.
According to the news reporting, Obama has again been pressing China to enforce its law on intellectual property more vigorously. And so did the chinese judicature – this time against one of the world’s largest beneficiaries in terms of intellectual property protection.
Indeed, this merits to be referred to as

“Legal Infotainment”

According to the facts, a Beijing based company, Zhongyi Electronic Ltd, claimed that Microsoft had exceeded the scope of a previous agreement to use and sell fonts, patented by Zhongyi, in Windows 98, Windows 2000, Windows XP and Windows Server 2003.

Microsoft Had Thus Infringed

Zhongyi’s exclusive rights under patent law, so Zhongyi’s claim.

Beijing’s Intermediate People’s Court No.1 followed claimant’s argument and

Ruled Against Microsoft

The court’s ruling now prevents Microsoft from importing and distributing above mentioned software products in China, but does not appear to affect Microsoft’s latest operating systems, including Windows 7, which went on sale last month.

Needless to say that Microsoft will go on appeal which – from my perspective – could make the story even funnier. I will keep an eye on that!

13 November 2009

The retention of internet traffic data saves New Yorker Teen from robbery charges

No, this is not a text dedicated to advocate company policies or governmental prescriptions on data retention, even though defenders of retaining communications networks’ data might well use it for such purposes.

It is the story of the 19-year-old New York City Teen Rodney Bradford which shows that a policy to retain user’s traffic data may also have an yet undiscovered “bright side”.
Just imagine Rodney’s life given a verdict sending him to jail….
And yes, I believe that Facebook’s policy to keep certain log files stored for a while literally saved this boy’s life.

Hence my Friday’s message to the audience: Try listening to “Always look on the bright side of life” when thinking of data retention -).

8 November 2009

When does hip-hop sampling infringe copyright? The "Bow wow wow, yippie yo, yippie yea" case.

On 4 November 2009 the US Court of Appeals for the 6th circuit affirmed the US District Court for the Middle District of Tennessee’s decision that the unauthorized use of George Clintion’s “Bow wow wow, yippie yo, yippie yea”, being the rerfain in his “Atomic Dog“, by Public Announcement, an R&B and hip hop group, in their song “D.O.G. in Me”, constituted copyright infringement. The infringement was claimed by Bridgeport Music to which George Clintion has had assigned his rigts. Proceedings were then commenced against Universal Music Group that acquired A&M Records – the music label that had previously released the infringing “D.O.G. in Me”.

What makes this case remerkable, is the Court’s restated guidance on “sampling”.

Sampling Is Widely Used

by many rap or hi-hop artists when creating their songs. The authority thereby dealt with questions relating to both, substantial similarity and  a possible fair use defence.


Having personally found such guidance really usefull, I decided to make it an entry on my blog.

In opining as to whether the claimed substantially similarity was present, the Court decided to “identify which aspects of the artist’s work, if any, were protectible by copyright” and, second, to “determine whether the allegedly infringing work was substantially similar to the protectible elements of the artist’s work.”

Having done so, the Court dismissed the comparison between the two songs as a whole, but applied the “fragmented literal similarity” test by asking whether a smaller fragment of “Atomic Dog” has been copied literally, and not the overall theme or concept of the song. This view was backed by an expert testimony that described the copied elements of “Atomic Dog” as

Unique To The Song And The “Bow Wow” Refrain

in particular, as the most well-known aspect of the song.
Thus, the Court found that there was substantial similarity, as the copied elements were found to have such great qualitative importance to the song.

While examining

Whether a Fair Use Defence Might Be Applicable

the Court overthrew Universal’s claim that the copying certain elements from “Atomic Dog” in “D.O.G. in Me” was intended as an homage or tribute to George Clinton and, thus fair use. The court came to this result upon applying the statutory factors from 17 U.S.C. § 107: “D.O.G. in Me” was indeed transormative (first factor); however “Atomic Dog” was clearly within the core of copyright protection (second factor); moreover, the copying covered the most distinctive and recognizable elements of “Atomic Dog” (third factor), and finally, given the fact that “Atomic Dog” is one of the most frequently sampled compositions of the Funk era, Bridgeport could lose substantial licensing revenues if it were deprived of its right to license content such as that used by Universal (fourth factor).

In my personal view this decision is capable of building

An Opposite Pole To

Campbell v. Acuff-Rose Music and hence a milestone in legal practice.