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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Benefits of adopting best practice in workplace interception and monitoring

by Steve - Posted 08 June 2006

By looking at electronic workplace monitoring from a wider perspective instead of only focusing on the provisions of RICA, employers will be able to:

- lay the foundation for successul discliplinary measures to be taken against employees who abuse e-mail and Internet facilities
- ensure compliance with existing and future laws relating to privacy
- follow international best practice for monitoring electronic communications in the workplace; and
- maintain a solid relationship of trust and mutual respect with employees        

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New Ruling on Copyright in Software

by Steve - Posted 03 April 2006

The recent judgment in the Supreme Court of Appeal in the Haupt / Brewers Marketing Intelligence (Pty) Ltd matter has cleared up some important issues in copyright in software. See our article.

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Interception and monitoring - the shoe on the other foot

by Steve - Posted 22 November 2005

When we talk about the interception and monitoring of electronic communications, most of the focus is on bosses snooping on their employees' e-mails or Internet usage. But what if the shoe was on the other foot? In the US, a former claims adjustor employed by the Bristol West insurance company was caught using a keystroke logger device that he purchased off the Internet to tap his employer's computer.

The device was installed on a secretary's PC in an effort to expose alleged anti-consumer practices by Bristol West, including the illegal canceling of client's policies. The whistle blower was charged under the US's federal Wiretap Act for unlawfully intercepting electronic communications transmitted over a system that affects interstate or foreign commerce.

However, the case was dismissed on the grounds that the employee's conduct did not amount to an unlawful interception in terms of the Wiretap Act. The judge ruled that the interception of keystrokes between the computer's keyboard and its hard drive did not meet the Act's requirement that the intercepted communication/s were being transmitted over a system that affects interstate or foreign commerce, even where that computer was linked to the employer's internal network and/or where the intercepted communications may have been e-mails.

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Workplace monitoring - hell hath no fury like an employee scorned

by Steve - Posted 10 July 2005

According to a recent study conducted by the National Threat Assessment Centre of US Secret Service, most insider attacks on company information systems are carried out by disgruntled employees often with prior disciplinary records. This makes common sense, but what is more worrying is that only 17% of attacks are carried out by individuals with "administrator" status. 87% of attacks are carried out  using simple user commands.

So while you are keeping out the crackers and hackers, remember Joe in Accounting who was passed over for promotion last month.      

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New judgment on confidential information in ICT sector

by default - Posted 16 June 2005

Van Oosten J in Valunet Solutions Inc. v eTel Communication Solutions 2005(3) SA 494 (WLD):

"Innovator of novel concept or idea can only preserve it by jealously guarding it as a secret or secure its protection by patent or otherwise. Once disclosed its impetus and hopes of remaining unique are short lived. Experience in this particular field teaches that a novelty of today is merely history tomorrow"

Interesting judgment that has been reported in the Witwatersrand Local Division on the protection of confidential information and unlawful competition in the ICT industry. Watch the space for our comments on the case.   

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Employer's risk for internet abuse - the Grobler v Naspers judgment

by default - Posted 16 June 2005

The Cape Provincial Division's landmark judgment in the case of  Grobler v Naspers 2004(4) SA 220(CPD) poses some serious questions for employers facing growing internal ICT risks in their workplace.

The judgment paves the way for more and more employers to be held vicariously liability for the wrongful actions of their employees. Although the case dealt with sexual harrassment risks, the approach taken by the court will be applicable to ICT risks as well. It may no longer be enough for employers to rely on the fact that the employee was not acting in the furtherance of the employer's business, or that the employee's conduct complained of was intentional or a clear deviation from the employer's instructions. The court followed the approach adopted in other jurisdictions by looking at the risks associated with and created by the running of the employer's business. If risks are introduced which later materialise causing harm, the employer may be liable even though there is no-fault on his/her part.
      

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Laying the groundwork for disciplinary action

by default - Posted 10 May 2005

In another of many such cases, three employees at a Scotland Rolls Royce plant were recently dismissed for downloading porn from the internet. It is clear that all three were aware of the rule against viewing and/or downloading porn and that they knew that a monitoring system was in place.

A company spokesman commented that it was their belief that the action taken was fair but firm. Because the material downloaded was not illegal but rather inappropriate for the workplace, the matter was dealt with internally and not reported to the police.

Most local companies would react in the same way, but it is vital to remember that disciplinary action can only be taken where a company has laid down clear rules for use of the internet and has taken reasonable steps to ensure that their employees are aware of these rules and the possible sanctions for breaching them. Companies should also strive to be consistent in the way which they deal with those who break the rules.

A failure to formulate and publicise rules will most likely result in an employee being able to succesfully contest a dismissal or other discplinary action in the labour courts.

Probably the simplest way to lay the groundwork for future disciplinary action is through the proper implementation of an Electronic Communications Policy which sets out the rules for acceptable use of electronic communications and makes it clear that disciplinary action, including the possibility of dismissal, will be taken against employees who flaunt them.

An Electronic Communications Policy, or ECP, will also assist to protect companies against a variety of potential liabilities which may flow from employee use of e-mail and the internet. It might even contain a ban against employees agreeing to release their passwords to strangers in exchange for chocolate!!

If your company does not have an ECP we strongly suggest that you consider implementing one. It does not have to cost and arm and a leg and could well save you a lot of money and hassle in the future.

Contact us with your details if you would like a quotation.

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Nicciferguson on domain names

by default - Posted 06 May 2005

Follow the link to the Mail & Guardian Online to see what we have to say about the current state of domain name disputes in SA (unfortunately only available to M&G subscribers).

http://www.mg.co.za/Content/l2_c.asp?sa=106

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