Category Archives: Internet

Ignorance not Bliss – Avoiding liability for infringing pay-per-click advertising activity

Often, businesses treat intellectual property just as something they need to own and register, without giving enough thought to the risk of infringement.  Even where the risk of infringement is considered, business owners don’t often realise that they could be liable for the actions of their contractors or employees, even if they are unaware of them.

This is increasingly a problem when it comes to social media and online marketing, and a recent dispute illustrates the risks involved.  Ayesha Vardag, a prominent divorce lawyer, discovered that, unbeknownst to her, the marketing agency her firm had engaged was bidding on the name of her previous employer in order to generate enquiries through Google AdWords.  Following negotiations, Vardag agreed to settle for over £40,000, as reported by The Lawyer.

Beware of Buzz Marketing

Online Brand Protection

Shireen Online Brand Protection BlogBeware of buzz marketing. Writing fake online reviews can land your business in serious trouble and cost you more than you gained in reputation or sales, as evidenced recently by a host of SEO companies caught up in New York’s “Operation Clean Turf”.

A year-long undercover investigation into the reputation management industry caught 19 small businesses engaging in astroturfing, flooding the internet with bogus consumer reviews on websites such as Yelp, Google Local and CitySearch.

Astroturfing is the practice whereby a business pretends to be an ordinary customer, writing glowing reviews about the business’ own products or services, or negative reviews slamming their competitors’.

In a crackdown last month, New York Attorney General Eric T. Schneiderman issued penalties in excess of $350,000 between the offending companies.

Schneiderman’s office discovered that many of the businesses probed had used techniques to conceal their identities, manipulating advanced IP spoofing techniques, setting up fake online profiles on consumer review websites and paying writers in the Philippines, Bangladesh and Eastern Europe to mock up false reviews. In the process, these companies had engaged in illegal and deceptive business practices, violating multiple state laws against false advertising.

“Astroturfing is the 21st century’s version of false advertising – and prosecutors have many tools at their disposal to put an end to it,” Schneiderman warned.

The law in the EU under the Consumer Protection from Unfair Trading Regulations 2008 is stricter than the USA, so that “falsely representing oneself as a consumer” in the context of promoting a product to consumers is a criminal offence, for which the maximum penalty is 2 years imprisonment and/or an unlimited fine. The Regulations are policed by the Office of Fair Trading and Trading Standards, which may also direct complainants to the Advertising Standards Authority.

There are plans to further strengthen the law so British consumers have the right to take direct action against traders for misleading or aggressive practices. The proposed law, when implemented, will empower consumers to make direct claims against traders with whom they have entered a contract or made a payment to as a result of misleading advertising.

Given the anonymity of the web and accessibility to a growing range of social media channels, it’s easy to see how so many businesses succumb to such underhand tactics. However, while astroturfing is unethical – and in most cases illegal – it should be remembered that the ultimate penalty is the PR own-goal scored when caught. Businesses build their brands, above all else, on trust. Being exposed for falsifying reviews and manipulating online discussions could therefore cause irreparable reputational damage, shattering consumer and client relationships which are the lifeblood of any business.

Reputation is critical to any successful business, no matter its size. Astroturfing is an unauthentic and foolish path to follow in a digital age where connection and sharing is just a click away.
The damage to reputation for any company caught trying to steer public commentary around their products and services could prove fatal for your brand.

To find out about the risks online and how to best promote and manage your brand, why not come along to this Own It event at which Shireen Smith will be speaking on 29 January 2014 at 18.30pm. For more information please visit www.own-it.org/events.

IPKat 10th Birthday

10 Years of the IPKat!

IPKat 10th BirthdayIt was a pleasure to celebrate the 10th birthday of the IPKat yesterday with blogmeister Jeremy Phillips and friends, and having had a thoroughly enjoyable time I wanted to say a few words personally about the value Jeremy has brought to the IP community.

Managing and contributing to the IPKat, one of the most renowned, freely accessible resources of information for intellectual property enthusiasts and professionals, whilst balancing numerous other commitments like moderating and contributing to about 10 leading blogs on IP law, also set up by Jeremy, is a task Prof. Phillips does day in day out with flair and enthusiasm.

Jeremy’s innovative approach of using the internet to reach out to a wider audience beyond academics and practitioners is certainly worthy of recognition. Prior to the arrival of the internet, access to information on legal subjects would be provided in printed form. These publications would be housed in university libraries or practitioners would subscribe to the specialist magazines or journals. It was a very niche and specialist world, with considerable barriers to entry. Having set up the first trademark blog in the UK, Prof. Phillips was a pioneer of the use of blogging as a platform to promote the free and rapid exchange of ideas on IP and to entice the interested public to engage and read about IP issues which affect them.

Arguably Jeremy’s greatest contribution, is his peerless ability to build IP communities through writing, networking, and the events he organises, and his approach is always inclusive. His work has encouraged open international dialogue and cooperation, developed relationships between practitioners, and inspired among many an inquisitive attitude towards intellectual property that can only have a positive impact upon the way in which intangible rights benefit our society.

Jeremy’s degree of dedication to people is outstanding, as a teacher he regularly assists students in finding jobs within their chosen field, is constantly writing references for them, and has a knack of spotting and nurturing talent.  He regularly organises free seminars and events, and while developing an engaging community where there would have been none before, Jeremy also still finds the time to give individualised responses to all those who write to him or comment on his network of blogs.  Overall, it’s not an exaggeration to say that no other individual has shown this level of commitment to the IP community, and I’m looking forward to what Jeremy and the IPKat have in store for the next 10 years!

This post was co-authored by Stefano Debolini

Your Brand and Your Domain Name

Choosing names that say what your business does on the tin may not be the best approach to choosing domain names online, despite it being an approach many businesses have adopted in the past.

Often, it seems like a good idea to follow in the footsteps of those who have gone before, taking what looks like the tried and tested approach.

However, whilst in the past descriptive domain names may have given businesses certain advantages online, recent changes to Google’s algorithm at the end of 2012 have done away with many of these previous benefits.

The early days of the Internet

When the Internet was young, and not unlike a small village with just one top shop, one grocery store, one pet store, and other businesses who were the trailblazers in their industry with a website, a tradition started of using descriptive names or phrases for domain names. People searching for these pioneering online suppliers could readily find them by using descriptive keywords to search for them, and search engines made the websites easy to find.  In those early days if you wanted to find a business chances are you would just type into your browser Books.com when looking for books or Hotels.com to find somewhere to stay and so on. Nowadays, less than 25% search in this way.

Google’s algorithm

As online business took off, and nearly every business put up a website, the online space became overcrowded.  A high ranking in search results grew to be the key objective of many businesses, as more and more of us turned to Google whenever we wanted to find a product or service, and so the practice of using descriptive domain names became entrenched because Google continued to give a preference to domain names describing what their potential customers were searching for. For example if you were called Jobs.com, you would be more likely to show up in the top results, assuming your website was otherwise well designed.

However, this led to marketers using “exact-match domain names” as a way to cheat the system, pushing low quality websites up in search result listings. With Google’s recent changes to its algorithm, Google has made it harder for sites to cut corners, ensuring that the focus is on quality and relevance. Today, Jobs.com does not even make the top 10 search results for a search for ‘Jobs’.

Brands over descriptive

Selecting descriptive names has never been good practice in branding, as these names do little to set you apart from competitors, but now with Google’s alterations to its algorithm, this method of choosing names is even more inappropriate.

Even before this algorithm change, the online environment that influenced people’s practices has been quietly moving on away from descriptive names, with users searching online being much more likely to opt to visit sites with recognised brand names. Rand Fishkin, a renowned online marketing expert and co-founder of SEOMoz, which helps websites get found online, summed up the point concisely in a recent blog post: ‘Unbranded sites may be losing significant amounts of traffic vs. their better-branded competition. Choosing a “keyword-match” domain seems like a worse decision than ever’.

We couldn’t agree more, and encourage readers to take care when choosing a domain name for products and services.  Choosing a distinctive name comes with a whole host of benefits, not least of which is the opportunity to own it through trade mark registration. It is also easier to deal with competitors who seek to copy your domain names. Do get in touch if this resonates with you, and you want to find out more about branding your business.

Copyright Protection: How to Manage Copyright in an Unregulated Space

‘I have endeavoured in this Ghostly little book, to raise the Ghost of an Idea, which shall not put my readers out of humour with themselves, with each other, with the season, or with me. May it haunt their houses pleasantly, and no one wish to lay it.’ – Charles Dickens

Dickens’ ‘A Christmas Carol’ is a tale of generosity, giving, and a story often attributed to reigniting the Victorian Christmas spirit at a time when it had started to wane. Indeed, it has been attributed as being partly responsible for the way we celebrate Christmas today.

Dickens and ‘Piracy’

When it was published the book was an immediate success, selling six thousand copies on the first few days of sales. However, despite the book’s success, Dickens did not make much money out of it in part because his work suffered at the hand of ‘pirates’.

Unlike today, copyright laws in the Victorian times did not give protection in countries outside of where a work was first produced and created. Therefore after ‘A Christmas Carol’ was published, copies started popping up abroad in America, produced by publishing houses very cheaply.  They gave Dickens absolutely no financial benefit.

Berne Convention

As the world continues to change, laws, and in this instance copyright laws, sometimes take a while to adapt to the new problems these changes present. It was not until 1893, 50 years after the publication of ‘A Christmas Carol’, that the Berne Convention was created to give authors copyright protection over their work abroad as well as in the country in which the work was created

Copyright in the Internet Age

However, even though nowadays owners of copyrighted work no longer have to worry about the lack of control over work being produced abroad, there is a new challenge that has not yet been solved by current copyright laws: the Internet.

Your company might not be looking to create the next ‘A Christmas Carol’, but content your company produces may still be extremely valuable for the business – yet the Internet can make it difficult to ensure that people don’t misuse your copyrighted content.

Sometimes when the laws have not caught up with advances in technology, it is an unfortunate reality that there is little you can do in practice to tackle infringement, beyond prevention.

You can campaign for changes in the law (as Dickens tried to do in the Victorian times), or hope that there will be a way for the law to better protect your work or content.  However, sometimes the best that you can do is to understand how to benefit from the work you produce in the unregulated world of the Internet, despite the fact that some people may take advantage of your work and infringe your copyright.

The ‘Freemium’ Business Model

An important factor in building success online is attracting customers to your website. And in this Internet age one of the main things people are looking for is information, meaning that freely available and useful online content can be vital in achieving online success.

Giving information away for free can actually prove financially beneficial in unexpected ways. For Dickens, despite the fact he did not make money in the US from selling copies of his book, when he went over there to visit he discovered that he had a large fan base, and managed to make a good amount of money from giving readings of his works.

This just goes to show that just because the law might not adequately protect your copyrighted content from pirates; it does not always mean your company will suffer. Some successful bands have also profited from giving material away for free.  For example, Radiohead decided to allow customers to decide how much they paid for their album ‘In Rainbows’. And The Grateful Dead managed to create a devoted following and generate $60 million a year through their unorthodox approach to protecting their intellectual property, such as by allowing audiences to tape their concerts.

Managing Your Copyright Online

However, if you are concerned about keeping your copyright protected, here are some tips that might help:

  • Before publishing content online, evaluate what the consequences might be for your business if someone copied your content
  • Consider using measures like backlink, Google Alerts or copyscape.com to help you track down people who copy your site’s content.
  • If you know the Internet Protocol (IP) address of a copyright infringer, you can ban them from using your website (although they could still get round this by changing their IP address).

If you want to learn more about how to protect copyright or other IP online, buy a copy of Legally Branded. You can download free chapter of the book here.

This post was co-authored by Chloe Smith

Protecting the Olympic Brand – a most valuable asset, but for whom?

With the Olympics approaching, one slightly less predictable aspect of the games has been attracting attention: intellectual property.  Just like other businesses, the London 2012 Olympic Games has a brand it is keen to protect. The London 2012 site refers to the brand as the Organising Committee’s ‘most valuable asset’ and claims that its use needs to be controlled so as to maintain ‘both the emotional and commercial value of the brand’

Image of three trophiesDoctor Nicola Searle, writing for the IPKat,  contrasts the need for control of the branding rights as a mechanism to guarantee sponsor exclusivity and attract funding, with the value of the Olympic logo and signs as ‘freely used cultural symbols which form part of the feel-good intangible benefits’ of the games. What should be an important goal for the Organising Committee, the encouragement of community spirit, a country united, seems undermined by strict protection of the Olympic brand in this way.

The Problem of Ambush Marketing

Some argue that such a draconian approach has lead to a weakening of the Olympic spirit. Long associated with the bringing together of people of all nationalities in heroic sporting endeavours, the borderless, level playing field of the Olympic Games just doesn’t seem to fit with strictly enforced exclusivity when it comes to the symbols people use to talk about it, where big companies with sponsorship deals can enjoy the brand but myriad smaller business owners are locked out from a national event that may never reoccur in their lifetime.

A Techdirt blog post offered sobering insight into the extent of the efforts made to restrict use of the brand by highlighting the case of an 81-year old woman selling a doll clothed in a sweater donning the Olympic logo for just £1 at a church sale.  Joy Tomkins was warned off selling the doll by trading standards, who advised that she would commit an act of infringement by doing so. Her reaction was one of disgust, having assumed ‘the hoops symbol was universal’

Still, the problem for the Olympic brand is ambush marketing, whereby other businesses who have not sponsored the games find ways to bolster their advertising, sometimes by use of the Olympic symbols. This has always been a problem for sporting events like the Olympics or the World Cup. With global sponsorship of the Olympic games in the tens of billions, if ambush marketers are not kept in check there is a risk that pockets might not be so deep as time goes on. Large events like the Olympics rely on sponsorship for funding. When other businesses use the brand in their marketing, this could reduce the value of the exclusivity paid for by sponsors.

Olympic symbol is universally recognised

With the Olympic symbol proving to be ‘the most recognised symbol in the world’, and in light of the immense coverage and prestige of the games, it is unsurprising that brands would want to associate themselves with this event.

The London Organising Committee of the Olympic and Paralympic Games (LOCOG) have taken steps to ensure not only that their brand is protected under a combination of copyright, trade mark, and design rights, but also that it is a criminal offence under special purpose statute to market or sell goods using any logos, symbols or words that might associate unauthorised businesses with the Olympics. The Olympic rings, Paralympic agitos, the Olympic podium and words or phrases associated with the Olympics, including ‘Olympic’, ‘Spirit in Motion’, and ‘Inspired by London 2012’ are all protected. On top of this a combination of certain words, such as ‘London’, ‘2012’, ‘Games’ and ‘Twenty Twelve’ in marketing campaigns can also lead to trade mark infringement. (See BBC for a complete table of restricted words)

Nike’s IP lawyers can find ways around the rules

Despite strict regulation, already certain companies who have not paid to become official sponsors are benefiting from the Olympics. For example, as reported by UK digital agency the Jam, Nike is the brand most associated with the upcoming Games, over Adidas, the official sponsor of the event.  This might be the result of their #makeitcount social media campaign promoting Nike-sponsored British athletes, and is also likely due in part to their advert featuring two Olympians.  Crucially, simply featuring Olympic athletes in their campaign does not infringe Olympic IP. So despite the comprehensive measures it has taken, LOCOG still faces difficulties in controlling and policing all marketing efforts that hope to benefit through an association with the games.

The FT cites London 2012 as being the ‘first truly digital games’, and the growth of social media has only made it more difficult to protect the Olympic brand than ever before, despite Twitter and Foursquare lending their support to help enforce exclusivity.  Simon Chadwick, professor of sports business management at Coventry University gets to the crux of the matter at the FT, explaining that ‘social media is a very, very difficult area [in which] to control the dissemination of information – it’s very fast-paced and hard for rights protection officers to track and monitor what is happening before it has already happened’. Clearly, management of the Olympic brand is a complex issue. Ambush marketing threatens to eat a hole in the pockets of the organisers that are doing their best to give the nation an experience it will never forget, and even with strict control, specialist legislation and proactive enforcement it is still a battle to guarantee sponsors the exclusivity they are willing to pay for.  But this exclusivity sits uneasily with the otherwise inclusive nature of the festivities, and there is certainly an argument to be made for allowing the public freedom to use Olympic symbols in their own way.  Is it fair to restrict the opportunity to show support for the games to businesses who can pay? Wouldn’t it put a smile on your face to pick up a bite to eat from the Olympigs roast-pork stall? Officials have said they understand some unauthorised uses are just down to ‘pure enthusiasm for the Games’, and suggest they will take a pragmatic approach. It’s a difficult balancing act, and we shall have to see whether this controversy will start to fade as the events get underway, just one month to go!

 

New cookie law no longer an issue following an ICO backtrack?

Many people breathed a sigh of relief following the Guardian’s take on last week’s ‘watering down’ of  EU regulations by the ICO which impact on the use of cookies by UK websites.  Unfortunately, perhaps as a result of Chinese whispers, the growing consensus seems to be that the European rules don’t apply and sites no longer need to take action.

The previous version of the guidance, seemingly no longer available from the ICO following a quick search, provided, at page 6, that:

“general awareness of the functions and uses of cookies is simply not high enough for websites to look to rely entirely in the first instance on implied consent.  As consumer awareness increases over the next few years it may well be easier for organisations to rely on that shared understanding to a greater degree”

The same paragraph suggested that the shared understanding necessary to rely on implied consent is more likely to be achieved ‘if websites make a real effort to ensure information about cookies is made clearly available to their users’.  Notably, the guidance indicated that mentioning cookies in a privacy policy would not be sufficient.

What some people appear to have taken away from the revised note, which elaborates on the above, is that the ‘watered down’ guidance means no action is necessary, because implied consent is suddenly an option.  However, implied consent (as opposed to requiring a visitor to subscribe, to check a box, or to click a button), was already envisaged by the ICO.  In particular, page 16 of the previous guidance explained that, if a notice is displayed asking for permission and the user does not explicitly give it by clicking ‘accept’, instead navigating to another part of the website, then “you might decide that you could set a cookie and infer consent from the fact that the user has seen a clear notice and actively indicated that they are comfortable with cookies by clicking through and using the site”.

While the revised guidance offers some further clarity on this point, and arguably relaxes the language somewhat such that implied consent seems a more viable option, it has not done away with the new requirements.  Specifically, rather than simply allowing users to opt-out of the use of cookies, websites now need opt-in consent.  To infer implied consent, you ought to be sure that visitors actually know you intend to use cookies, and why.  The Guardian, the BBC, BT and a host of other sites have been updated to do this with notices of varying size and prominence which could serve as inspiration for your own site.

If you only mention cookies in your privacy policy, or you have a link to “cookies” in your footer, it is likely that you are not doing enough to educate visitors to an extent adequate to infer consent. That doesn’t mean you need to drop everything and get your web developers on the line right away.  Although the grace period for non-enforcement by the ICO has ended it is perfectly clear the Commissioner does not intend to adopt a heavy handed approach.  However, you should also not ignore the changes, and it is important to take note that, where the new guidance refers to implied consent, it also mentions more than once how “explicit consent might allow for regulatory certainty”.  There are also international considerations to bear in mind, as mentioned in our earlier post.

What is important is to begin working towards compliance.  If you are a small business with scarce resources, then rather than dragging your heels, why not take some time to identify straightforward steps you can action now.  There are WordPress plugins, downloadable Javascripts and a range of other offerings that can help you to quickly demonstrate that you care about keeping your visitors in the loop, and complying with your legal obligations.

How to deal with the new law on cookies

On the 26th of May the grace period granted by the Information Commissioner’s Office (ICO) to comply with laws on cookies ended.  Websites have since been subject to a higher risk of sanctions if they fail to comply.

Image of computer with a cookie displayed on the screenBefore discussing the implications of the new law and how businesses can adhere to it, it is worth explaining what cookies are and why the law takes an interest in them.

Cookies

Cookies are pieces of information that websites store and access on visitors’ computers for a variety of reasons.  For example, a website might store a cookie on your PC so that when you return to that site, it can remember you, so you don’t, for example, need to enter your password multiple times.  Cookies make our user experience of sites more enjoyable.  They are also used to track your activity for marketing analysis purposes.

The aim of the law is to protect people’s online privacy. The ICO’s main concern, noted in ‘Guidance on the rules on use of cookies and similar technologies’, was online tracking of individuals and the use of spyware.

New regulations

So, what do the new rules mean? The regulations build on the previous law laid down in 2003, which required websites to provide visitors with clear and comprehensive information about how and why cookies were being used on a site, and to give users the ability to ‘opt-out’ of cookies being stored on their devices.

The new law means cookies can no longer be stored on a visitor’s device unless the visitor specifically consents in advance, for example by clicking a button, sending an email, checking a box and subscribing to a service.

However, in some cases consent is not strictly necessary. For example, using cookies to remember items in an online shopping basket for the purposes of security in online banking or to help load webpages faster is acceptable.

Still, these exceptions are limited, and the majority of sites have since been obliged to seek explicit consent to use cookies. Examples of common use of cookies for which sites need consent include web analytics (such as Google analytics), for advertising, or to recognize visitors when they return.

A controversial law?

For many, the law is controversial because it can be difficult to implement these measures in a way that does not spoil visitors’ experiences.

A crucial issue, attracting much attention, is that if a site cannot use cookies to remember that a visitor has not given consent to the use of cookies, it may need to keep asking for consent every time a page is loaded.

In response, the ICO has provided a range of examples of how to get around this particular issue.  These are on pages 19-25 of the ICO guidance on the new cookies regulations.

The ICO is unlikely to impose colossal fines for first offences or minor breaches. The deputy commissioner has said that enforcement of the law ‘doesn’t mean the ICO is going to launch a torrent of enforcement action’, though the ICO announced it would send out 50 letters to some of the UK’s biggest websites, asking them to demonstrate that they are explicitly asking for users’ consent before using cookies to track behaviour.

Having sent these letters, the ICO intends to wait for users to specifically complain about cookies being used on particular sites before investigating individual organizations.

While only serious breaches of data protection will lead to the maximum fine, the ICO does have the power to commit an organization to take steps towards compliance, to compel an organization to comply (failure to do so would be a criminal offence) and if necessary, for more serious cases, to impose fines of up to £500,000.

Ensure you have a Privacy Policy

So what can businesses do to ensure their websites comply? First, it is important to find out whether your website uses cookies.  Also, consider whether you can avoid using cookies (the majority of business sites will likely be already using, or might want to use, cookies for the purpose of analytics).

Next, ensure your privacy policy mentions cookies, or if you don’t already have a policy, implement one as soon as possible.

Simply mentioning cookies in your terms may not be enough, because explicit rather than implicit permission is necessary for strict compliance, and for users to see your terms they would need to have loaded your website, and so may already have had a cookie placed on their device before being given the option to opt-in or out.

Under certain circumstances, the ICO suggests implied consent might be enough, provided a cookie-notice is displayed prominently, but this is a risky approach. Although the UK ICO is taking a pragmatic approach to implementation of the cookie rules, the changes are the result of European legislation, and other countries in the EU where the website is accessible might not be as lenient.

Every website is different, so businesses need to consider the best way for their particular site to inform visitors about their use of cookies, and obtain consent.

Unfortunately, it can be difficult to avoid spoiling the user experience for visitors who decline cookies. So it is important to work with web designers to develop an acceptable solution, and cookie consent should be a key design consideration if you are having a new site built.  The Guardian recently updated their site with the below notice, but your site may merit a different approach:

Image of a cookie banner

The focus of the ICO is likely to be on big business, so it should necessarily be a significant concern if you have not yet addressed the changes on your site.  This is especially true where you make judicious use of cookies, given that we expect smaller businesses to be targeted by the ICO only if they receive complaints.  Still, this is not a good reason to ignore the issue.

Legal advice should be taken as early as possible, to ensure the solution for you works both from a legal and branding perspective, and avoids damage to reputation due to poor user experience.  Similarly, you want to avoid investigation or sanction for a breach of rules designed to protect visitors.

Although in future compliance might be made easier by browser integration of cookie consent settings, for now a more creative solution is necessary.

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Are copyright owners winning the war against copyright infringement? Pirate Bay Blocking Order.

Tools enabling peer-to-peer (P2P) distribution of music, video, software and other copyright material are continuing to evolve in a way that presents an increasing challenge for the law, and hence for copyright owners who want to enforce their rights. From early bulletin board systems (BBS) to Usenet, P2P networks like Napster, less centralized services like Kazaa, and onion routing ‘darknets’ like Tor, it can be very difficult to track down online infringement and identify theft perpetrators. One of the most popular protocols for file sharing, both legitimate and infringing, is BitTorrent.

To share through BitTorrent, users generally distribute a .torrent file through a tracker (though there are ways to use BitTorrent without using a central tracker).  This tells other users what is available to download and how to access it. A number of websites index these torrent files, allowing visitors to search a library of thousands for the content they are looking for.  One of the most popular torrent search engines is the Pirate Bay. These search engines don’t store the content themselves, simply the torrent files that point to it. However, this is not enough to escape liability when services are used to share copyright material, as was made clear by the UK High Court in April, when it found that the Pirate Bay “sanctioned, approved and countenanced copyright infringement by its users”. As a result of these findings, major ISPs in the UK were ordered to block access to the website, just as they were ordered to block Newzbin last year.

To some extent these decisions broke new ground, as the blocked sites didn’t actually host copyright material themselves, just information about where to find it. They did however go somewhat further than this, and were held to have encouraged infringement by their users. This doesn’t mean you can sleep easy if you avoid actively promoting copyright infringement. If visitors share information through your site it’s important to be aware that you, rather than your users, may find yourself the first target of legal action relating to any infringement.

These are just two incidents highlighting what might happen when copyright owners enforce their rights online. Rights holders have also been active in campaigning for more effective legal protection, contributing to support for legislation such as the Digital Economy Act (DEA), which we have written about on a number of occasions. Interestingly, the success of copyright owners in cases like those mentioned above suggests legal protection is already at the right level, with the government deciding that existing legislation offers enough scope for blocking infringing websites, and declining for now to implement additional mechanisms envisaged by the DEA.

Does that mean copyright owners are winning the war? Probably not. James Ball at the Guardian argues that the Pirate Bay copyright crackdown is unsustainable. Ball suggests that compliance with the blocking order would be a “near impossible task” for ISPs, and this seems correct. To effectively prevent all access to a website from the UK means (at the very least) either taking that website offline (which can be very difficult depending on where it is hosted); or inspecting each and every ‘packet’ of information going in and out of the country. If those packets of information are sent through a network like Tor or otherwise encrypted the problem is compounded even further, and ‘impossible’ is not a stretch. However, it is important to appreciate that while a 100% effective block might be impossible, these steps will certainly make it more difficult to access infringing content.

Another very valid concern raised in Ball’s article is that efforts to curb infringement online risk suppressing legitimate activity. Not all torrents point to infringing material, and many websites (for example: Legit Torrents; Clearbits; and LinuxTracker) allow visitors to search for legitimate video content, creative commons-licensed work, and open source software. Sites like the Pirate Bay also hosted links to legitimate content, and a blanket block of the service means removing access to this along with infringing material. There are also a range of commercial risks when tackling infringement online.  One is the potential damage that can be wrought to your reputation by false accusations.  Some of the techniques used to identify copyright infringers online have led to controversy, and while lawyers have borne much of the brunt of the backlash to widespread legal threats, being overzealous when indentifying infringers can lead to consumer resentment. Tracking online copyright infringement can lead to false positives, and sending warnings to innocent users is not likely to go unnoticed.

There is no panacea here. As the law catches up, technology streaks further ahead. As soon as parts of the web are blocked out by court orders, others spring up in their place, and increasingly sophisticated techniques for hiding activity online mean there could be far more sharing taking place on the ‘darknets’, invisible to copyright owners. For online businesses, and those that want to enforce their copyright, the risks are many and varied. However, so are the opportunities. Just as the law develops to keep pace with evolving technology, I am always interested to see new business models emerging to meet the needs of both users, who want quick and easy access to content, and rights owners, who want to keep control of their creative output.

Pinterest and Copyright

Pinterest, a new social media site that allows users to ‘pin’ digital pictures on virtual pin boards, has recently faced a number of concerns regarding potential copyright infringement.

An American lawyer Kirsten Kowalski blogged about the social media site’s Picture-sharing boards as infringing copyright, announcing that she had deleted her Pinterest account when she realised that her use of the photo-sharing site could potentially make her break the law.  The blog post sparked a lot of attention, and spread fears about these potential legal issues.

The main problem was to do with the terms and conditions of the site, as they explicitly say that should there be any copyright infringement for reposting a copyrighted picture, it would be the user and not the site that would be culpable. The way the law works is that even if users are unaware they may be infringing copyright, this does not absolve them from legal action.

Despite their terms, which clearly state that users who ‘pin’ images they do not hold the rights to may be liable, the site itself seems to actively encourage sharing images. As Kowalski puts it ‘their lawyers say you can pin anything that you don’t own… but the site is saying that you can’. The site makes it very simple to repost (or rather pin) pictures from other sites around the web, which has irritated some photographers.

However, the question still remains, why is Pinterest facing these problems when other social media sites have not? As Technollama points out, Pinterest’s terms and conditions are similar to those of other social media sites such as Twitter and Facebook. However, the primary difference between these sites, as discussed here, is that Pinterest’s whole business model surrounds the sharing of images. Although Facebook and Twitter do allow people to post images, this is not the main feature of either site.

Jonathan Klein, the CEO of Ghetty images, emphasizes this point. As TechCrunch noted, Klein is ‘not concerned about people playing with Getting photos, teenagers using them for school projects, and folks putting them up on their personal blog’.  However, despite this he has highlighted the fundamental problem with Pinterest: ‘We’re comfortable with people using our images to built traffic. The point in time when they have a business model, they have to have some sort of license.’ It is the very fact that Pinterest’s business model heavily encourages not only for people to upload their own images to the site, but to share others images that has become cause for concern. So far Pinterest is not making any money, however as Techcrunch noted, as soon as they do they will be liable to have to either pay or remove copyrighted images.

Pinterest’s approach to these concerns has been similar to sites such as YouTube. The company believes that it is protected by the Digital Millennium Copyright Act, and says that it will respond quickly to any copyright issues that might arise. Pinterest has been keen to listen to feedback from its users and has addressed any issues by updating its terms of service, details of which can be seen here.  On top of this Pinterest has also made it easier for people to notify the site about any copyright or trade mark infringements.

This means if you object to an image you own being pinned on the site, it should not be too difficult to persuade the site to take it down, assuming you have proof that it is your copyright.