first decided case involving ISP liability for copyright infringement
by Steve - Posted 11 February 2010
Judgment was handed down by the Austrailian Federal Court on 4 February 2010 in the landmark case of Roadshow Films (Pty) Limited v iiNet Limited.
The case raised the question whether an internet service provider or ISP authorises the infringement of copyright by its users when they download copyrighted movies and TV shows on the internet. The general principle In Australian copyright law is that a person who authorises the infringement of copyright is treated as if they themselves infringed copyright directly.
The court found that the ISP did not authorise copyright infringement for the following reasons:
- The infringement of copyright was done using the BitTorrent system and not simply from the internet services provided by the ISP. The ISP did not create or control the BitTorrent system.
- The ISP did not have the relevant power to prevent those infringements occurring.
- The ISP did not sanction or approve copyright infringement.
The judge said that he could not be compelled to make a finding against the ISP simply because "something had to be done" about internet piracy, which on the evidence presented appeared to be occuring on a large scale worldwide.
He also said that an ISP provides a legitimate communication facility which is not intended to infringe copyright. It is only when users choose to make use of file sharing tools such as BitTorrent that copyright infringements take place.
This judgment will have persuasive authority if a similar case comes before a South African court. Although copyright holders may be disappointed by the outcome, it looks like common sense has prevailed in a situation which could have had dire consequences for the ongoing development of the internet if the decision had gone the other way.
A summary of the case is available here (we are trying to access the full judgment which is a 200page monster).
tell me lies tell me sweet little lies
by Steve - Posted 11 February 2010
Do you remember that stint working at the Kentucky drive thru in high school which became "a high-powered customer service position" in your CV. Yes, we all tend to pad the gaps in our resumes a little from time to time. Good marketing - isn't that what its all about? But what happens when your little white lies take on a much darker hue?
There is a line between trying to show ourselves in the best possible light to get a job, and outright deception. The consequences of crossing the line can be severe. In a case last year in the UK, an ex-employee of a local council was sued for lying on her CV about her health. The employee had suffered from depression over a long period of time and was being treated with anti-depressant medication. However, when she filled in a job application form for the council, she stated that she was in good health.
The council sued for damages based on numerous days of sick leave it had to pay out, GBP 175 000 worth! They based their claim on the fact that the employee had lied when she filled out the job application.
Giving incorrect or untruthful information to an employer can also be grounds for disciplinary action. If the lies dilute the whole relationship of trust between employer and employee, the employee could be fired. It will always depend on how serious the dishonesty was. Lying about professional qualifications that are essential for doing the job would be gross misconduct. Fibbing that you got an A instead of a B on your grade 1 report might just be okay.
In the current economy, the job market is saturated with people looking for work. Job applicants will be tempted to pad their CV's. If you are hiring, look out for exaggerated nose growth!
don't lose face on facebook
by Steve - Posted 10 February 2010
Word from the social media experts is that you need to be open and honest on sites like Facebook and MySpace to win friends and influence people. Personally I think its like being in a big room with loads of people standing on their own individual soapboxes seeing who can be the wittiest, most interesting or the loudest. But in striving for social media stardom, remember that while all these sites laud their privacy policies, they are still public websites where what you say can come back to haunt you.
Tokyo Sekwale's niece recently landed in hot water over comments she made about our good president's extra-curricular activites on her Facebook page.
Thinking that her comments were private, they were leaked by someone on her friend list to the media causing huge embarrassment for Uncle Tokyo who is a member of the president's cabinet.
If you are not yet a member of a social media site, you are probably reading this in Kleindorpfontein (picture tumble weed, skew teeth and banjo's) If you do hail from one of these places, just be very careful what you say about your beloved town or its good people.
Take the case of Cynthia Moreno, a small town girl turned university student. Not being content with simply moving away from the metropolis of Coalinga, California, Ms Moreno proceeded to dis her hometown on her MySpace page, saying how much she despised it and listing a number of reasons why it was a dump.
Her rant, which only stayed on her page for 6 days, was read by the headmaster of her old school.
Mr Grumpy, obviously not taking kindly to the criticism, decided to make an example of Morena by alerting the local newspaper to her comments. The editor of the newspaper published the rant verbatim in the next edition.
Unfortunately, Moreno's family, who still lived in the town, started receiving death threats and were eventually forced to close down their business and leave town.
Moreno sued the principal who leaked the rant to the paper for infringement of privacy. However, because she had posted the rant on a public website, she had no legitimate right to privacy and her claim failed.
This serves as a warning about being too honest on social media sites.
It may not lead to you or your family being railroaded out of town. But you could lose your job or even some friends.
For more information on the legal risks of social media, give us a call on (021) 465 9175.
Annual Returns for CIPRO
by Nicci - Posted 15 January 2010
All Companies and Close Corporations have to complete and lodge annual returns to CIPRO on the anniversary month of its Incorporation. If you don't lodge in time, a penalty charge of R150.00 is payable and failing to comply within 6 months may lead to the Registrar concluding that the entity is no longer in business and refer it to be deregistered.
Registrar's fees payable (based on turnover):
Private Companies: less than R10m R 450.00
above R10 less than R50m 2500.00
above R50m 4000.00
Close Corporations: less than R50m 100.00
above R50m 4000.00
State needs to cough up within 30days
by Steve - Posted 19 November 2009
The government has said that all current and future judgments against it would be settled within 30 days. This follows the constitutional court ruling last month that confirmed that moveable assets belonging to the state could be attached in execution of a judgment against it.
In the past, the only leverage you had to get an unpaid judgment paid by the state was to charge interest. But this wasn't really a major deterent. The 30 day promise is great news for litigants if the government can deliver on it.
Proposed tax breaks for primary residences
by default - Posted 06 October 2009
Individuals who own their primary residence in a Company, CC or Trust, can transfer their property into their own name/s without having to pay Capital Gains Tax, Transfer Duty or Secondary Tax on Companies from 11 February 2009 to 31 December 2012.
For more information, contact Nicci on (021) 465 9175
pre-incorporation contracts under the new Companies Act
by default - Posted 06 October 2009
A pre-incorporation agreement is an agreement concluded on behalf of a legal entity (eg. a Company) that is still to be formed. S35 of the Companies Act 61 of 1973 allows for a person to act as an agent of a company that doesn’t yet exist and for companies to conclude pre-incorporation agreements.
The requirements are:
- The agreement must be in writing;
- The memorandum of association of the company on its registration contains as an object of the company the adoption or ratification of the agreement;
- The person who concluded the agreement professed to act as an agent of the company;
- 2 copies of the agreement must be lodged with the Registrar of Companies with the application for registration of the Company.
S35 does not determine the nature of the rights and obligations of the agent. The agent , acting on behalf of the company to be formed, is not bound to the other contracting party if the company is not formed or if the company refuses to ratify the agreement. Hence the reason for inserting a clause in a pre-incorporation agreement specifically holding the agent personally liable should the company a) not be incorporated or b) the company refuses to ratify the agreement.
S21 of the new Companies Act 71 of 2008 changes the current position. It provides that a person (“promoter”) may enter into a written agreement in the name of, or purport to act in the name of a company to be incorporated and the Board may ratify or reject the pre-incorporation agreement within 3 months of incorporation. If the Company does nothing, it is deemed to have ratified the agreement and the promoter is not personally liable ito the agreement. However, if the company is not incorporated or, after being incorporated, it rejects the agreement, the promoter is automatically personally liable ito the agreement entered into.
For more information, contact Nicci on (021) 465 9175.
Retrenchments - getting rid of bad apples
by Steve - Posted 15 July 2009
In the recent Labour Court case of Janse Van Rensburg v Super Group Trading [2009] 3 BLLR 201 (LC), the employer, Super Group Trading, identified valid operational requirements for embarking on a retrenchment exercise. Janse Van Rensburg, a senior manager with the company, was identified as a possible candidate for retrenchment.
Janse Van Rensburg was a difficult character who was found by his co-workers to be rude and aggressive and difficult to work with. Under the auspices of allegations that he had made disparaging remarks about the company, Janse Van Rensburg was suspended.
He referred a dispute to the Labour Court claiming that he had been unfairly dismissed. The court found that although there were genuine operational requirements that warranted a downsizing exercise, the decision to retrench Janse Van Rensburg had been taken before the consultation process began and was largely premised on the fact that his colleagues did not enjoy working with him rather than on the valid selection criteria laid down by the Labour Relations Act.
Our R0.02:
You can’t get rid of unwanted members of your team by using operational requirements as an excuse. If you would like more information on the correct selection criteria to apply when choosing employees to be retrenched, give us a call.
RICA AMENDMENT ACT COMES INTO FORCE
by default - Posted 10 July 2009
What the above means is it will no longer be a matter of walking into a Clicks store and purchasing a prepaid sim card and cell phone. Pre paid users will have to supply all the necessary information as will contract users. So no identity number and no proof of address mean no active sim card and no cell phone number!!!!
On
South African cellphone users will need to disclose their full names, identity number and physical address and this information must be verified by the cell companies from documents requested (a bit like FICA).
Can a company help buy its own shares?
by Steve - Posted 13 June 2009
Section 38 of the old Companies Act severely restricted a company from providing financial assistance for the purchase of its own shares. The Act was amended in 2006 to allow for assistance to be given by the company under the following circumstances:
Solvency and liquidity test
2.
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