across the bar

google victory in the you tube copyright lawsuit

by Steve - Posted 26 June 2010

Google have successfully defended the lawsuit brought against them by Viacom and its co-plaintiffs for direct and secondary copyright infringement involving copyright protected material being uploaded to You Tube. The New York district court ruled that Google were entitled to safe harbour protection under the Digital Millenium Copyright Act, and that general knowledge of copyright infringement on its site did not disqualify it from such protection. Viacom have said that they will appeal the decision.

Check out the ruling.  

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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).

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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.

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Guide to marketing with SMS short codes

by dominic - Posted 17 August 2006

We have prepared a brief guide to the correct manner in which to advertise or market  services and competitions which use SMS short codes. In the last few years this form of advertising has exploded and examples of the use of short codes to download ringtones or images and to enter competitions can be found every day in just about every kind of media.

The guide is based on the Advertising Rules of the Wireless Application Service Providers Association (WASPA). WASPA exercises control over wireless application service providers (WASPs) which typically act as aggregators  for Information Providers (IPs), which are the businesses and others who have content or other services which they wish to make available to the public for download. WASPs have direct relationships with South Africa's cellular networks - Vodacom, MTN and Cell C - which allow them to offer access to "short codes". Short codes are five digit numbers which a consumer can use to access a service or content and this single number is available to users of all the networks. A typical example of a short code is iTouch's 35050 short code.

If you are an IP or involved in the advertising or marketing of short codes we strongly suggest that you take some time to acquaint yourself with the applicable rules. Failure to do so could turn out to be an expensive exercise.

Download the Guide to Marketing with SMS short codes (14 page .pdf, 188KB)

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How to deal with SMS spam (update)

by dominic - Posted 22 July 2006

The Wireless Application Service Provider's Association (WASPA) has set up a hassle-free way to deal with spam received from bulk SMS service providers and other problems experienced with SMS communications.

If you genuinely believe it is spam and you have not consented to receiving it then:

1. Go to <https://www.smscode.co.za>

2. Identify the service provider

3. Contact the service provider directly to resolve the problem

4. If the service provider doesn't resolve the problem, and if the service provider is a member of WASPA, then lodge a complaint with WASPA by going to http://www.waspa.org.za/code/complaint.shtml
5. Fill in the Complaint Form and otherwise follow the instructions.
6. If you do not know the name of the Service Provider who sent you the spam SMS then say so and WASPA will determine if it is one of their members.
7. Submit the Complaint Form after giving as much information as you can. Provide the full text of the message.

Once you have lodged the Complaint WASPA will forward a copy of it to the Service Provider and request that they either sort out the Complaint within 5 days or, if the matter is more serious, that they provide a response to the Complaint within 5 days. Thereafter the matter is handed over to an independent adjudicator (a lawyer with suitable experience of the industry) who makes a finding.

If there is found to be a breach of the Code then the Adjudicator can issue a reprimand, fine or suspension and can order compensation to be paid. The Adjudicator can, if the breach is serious and ongoing, request the Networks to take action.

If your complaint is straightforward and genuine it will be dealt with reasonably quickly.

If your complaint is complex and genuine you will have to wait for the independent adjudicator but it will be properly sorted out. 

More about WASPA

WASPA has a Code of Conduct which all WASPs operating through the South African mobile networks have to subscribe to, and sanctions for breaches of the Code are backed up by the threat of network enforcement. WASPs generally act as aggregators for Information Providers (IPs) and the rules of the Code are applied to these IPs through their dealings with the WASPs.

The WASPA Code of Conduct covers issues such as:

• Spam - the Code specifies an opt-in system
• Subscription services
• Advertising and pricing
• Competitions
• Complaint resolution
• Adult services

The latest version of the Code of Conduct is available at http://www.waspa.org.za/code/index.shtml.

A list of WASPS who are members of WASPA is available at http://www.waspa.org.za/members/index.shtml

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No more Prison Breaks

by Steve - Posted 07 June 2006

For those of you who are big fans of Prison Break on Tuesday nights, you probably get seriously irritated that  20min of actual content is put into a 60min slot. Where does the rest of the time go - advertising! Although SA adverts are amongst the best, it gets a bit much.  However relief could be at hand....

The Swedish Appeal Court recently handed down a ruling that the continous interruption of TV films with advertising breaks actually infringed the moral rights of the scriptwriters and directors of the films. Moral rights are those rights which vest in the author of a creative work which protect the author's reputation and the integrity of the work.

The court held that the authors of the films must tolerate insignificant changes to their works but the advertising breaks in this case were significantly long (5min each). The court also found that the effort put into creating a continous story with the intended dramatic flow must be taken into account when balancing the commercial interests behind advertising and the rights of the authors.

This way maybe Michael and his mates will finally break out of that bloody prison before the end of the year!              

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