DSM Watch: Regulation on Portability of Online Content comes into force 1 April 2018

4 04 2018

Hogan/Lovells

APRIL 1ST, 2018 BY DR. NILS RAUER, ALASTAIR SHAW AND PENNY THORNTON

This year’s Easter holiday brings with it a further milestone in the Commission’s endeavor to bring about a truly Digital Single Market: The Portability Regulation (EU) 2017/1128 comes into force on 1 April 2018. The Regulation facilitates cross-border portability of online content. It allows for subscribed content services to “travel” with the subscriber throughout the entire European Union. Be it movies, sport events, music, e-books, online games, they all need to remain accessible when temporarily abroad in another Member State. Service providers need to make sure this travel option is provided to their customers. Importantly, the Regulation applies to both new and existing subscriber contracts.

 

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The Regulation

According to Article 3 of the Regulation, providers of paid-for online content services are obliged to allow access and use of the content during a temporary presence in another Member State. The same content, the same types and the same number of devices (PC, smartphone, tablet etc.), the same number of authorised users and the same range of functions must be granted. Only the quality standards abroad are not guaranteed to be equal to those in the country of subscription. Providers who operate on the basis of a contract but free of charge can choose whether they want to make their online content available to their subscribers while travelling (Article 6). This also includes public broadcasters to which a mandatory broadcasting fee has to be paid.

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The content in this post was found at https://www.hlmediacomms.com/2018/04/01/6952/

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The Coming Border Wars: U.S. Court Decision Refusing to Enforce Canadian Court Order Highlights the Growing Balkanization of the Internet

22 03 2018

Social Aware blog: law and business of social media

on March 20, 2018

Does a search engine operator have to delist websites hosting, without authorization, your trade secret materials or other intellectual property? The answer may depend on where you sue—just ask Google. The U.S. District Court for the Northern District of California recently handed the company a victory over plaintiff Equustek Solutions Inc. in what has turned into an international battle where physical borders can have very real consequences on the Internet.

The dispute began when a rival company, Datalink, allegedly misappropriated Equustek’s trade secrets in developing competing products. Equustek also alleged that Datalink misled customers who thought they were buying Equustek products. In 2012, Equustek obtained numerous court orders in Canada against Datalink. Datalink refused to comply, and Canadian court issued an arrest warrant for the primary defendant, who has yet to be apprehended.

In September 2012, Equustek asked Google to delist search results for Datalink; Google declined this request. Equustek then sought a court order against Google in Canada and prevailed, resulting in Google removing 300 Datalink websites from search results generated by the Canadian version of its site, located at www.google.ca. Google, however, did not take similar steps with respect to U.S. and other non-Canadian versions of its site, so the Datalink websites continued to appear in search results conducted by users outside of Canada.

Equustek returned to the Canadian court, this time to seek an order compelling Google to remove the Datalink-related search results globally so that Datalink results would not appear for any Google users, regardless of their location. Equustek once again prevailed, and Google appealed to the Court of Appeal for British Columbia. That court, and later the Supreme Court of Canada, affirmed the trial court’s order.

Google then brought the battle to the United States; in July 2017, it commenced an action in the U.S. District Court for the Northern District of California seeking a declaratory judgment that the Canadian court order cannot be enforced in the United States and an injunction against the enforcement of such order. (Equustek did not submit an opposition brief.)

In support of its preliminary injunction motion, Google’s primary arguments were that the Canadian order (1) ignores the Communication Decency Act’s immunity for interactive service providers (2) directly conflicts with the First Amendment and (3) violates principles of international comity.

 

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The content in this post was found at https://www.sociallyawareblog.com/2018/03/20/the-coming-border-wars-u-s-court-decision-refusing-to-enforce-canadian-court-order-highlights-the-growing-balkanization-of-the-internet/

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United States v. Microsoft Corp. (USSC)

15 03 2018

SCOTUSblog

United States v. Microsoft Corp.
US Supreme Court, heard February 27, 2018

Issue: Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.

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An Uphill Battle Protecting Fashion Designs In Nigeria and Abroad

7 03 2018

Growing frustration in the fashion community regarding weak or non-existent intellectual property laws has finally caught the attention of some nations. Nigeria is one nation that currently is trying to alleviate this frustration by reforming its intellectual property laws. This reform is driven, in part, because, Lagos, Nigeria has quickly risen as a fashion hub, and has been compared with such fashion centers as London, Paris, Milan, and New York. Nigerian designers have recently experienced great global success and visibility. For example, Amaka Osakwe has been pushing the limits of Nigerian fashion and has gained the attention of fashionistas in the United States and abroad. In 2014, she was invited to the White House by Michelle Obama, an admirer of her work, and her “Maki Oh” designs have been worn by Lupita Nyongo and other A-list celebrities. Last year, Ms. Osakwe was named a LVMH Louis Vuitton Moët Hennessy Finalist, placing her among the most notable young fashion designers in the world today. Other talented Nigerian designers include Duro Olowu, Deola Sagoe, Lisa Folawiyo, and Lanre DeSilva-Ajayi. As these designers continue to gain worldwide recognition, they must protect their designs from infringement both within Nigeria and globally.

The first hurdle — protecting their fashion designs in Nigeria — is not a simple task. Copyright protection is typically sought to protect the two-dimensional aspects of clothing design, while design law may protect the three-dimensional design and shape of the piece. However, under both Nigeria’s copyright and design laws, designers have encountered significant difficulty protecting their works.

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The European Union Anti-Geoblocking Regulation Isn’t the End of the Anti-Geoblocking Battle (Guest Blog Post)

7 03 2018

by guest blogger Marketa Trimble

The EU Anti-Geoblocking Regulation has finally been published. After the Council of the European Union adopted the EU Anti-Geoblocking Regulation on February 27, 2018 (the European Parliament had adopted it earlier in the month), the Regulation was published in the Official Journal of the European Union on March 2, 2018, as “Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on consumers’ nationality, place of residence or place of establishment within the internal market” (and amending some existing EU legislation) (the “Regulation”). The adoption of the Regulation is not the end of the EU geoblocking battle, which endures, with the focal point shifting to another piece of EU legislation that is discussed below.

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/03/the-european-union-anti-geoblocking-regulation-isnt-the-end-of-the-anti-geoblocking-battle-guest-blog-post.htm

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EU Publishers Acknowledge Snippet Tax Concerns, But Say: ‘It’s OK, You Can Trust Us’

22 02 2018

Techdirt has been following the ridiculous proposal to extend EU copyright even further to include tiny snippets from articles for years now. The idea has already been tried twice in the European Union, and failed dismally on both occasions. In Spain, a study showed the move there caused serious economic damage, especially to smaller companies; German publishers tacitly admitted the law was pointless when they granted Google a free license to use snippets from their titles. More recently, the European Commission’s own research confirmed that far from harming publishers, news aggregators have a positive impact on the industry’s advertising revenue. Despite the clear indications that a snippet tax is a terrible idea, some want to go even further, and make it apply to hyperlinks too. Writing in the French newspaper Le Monde back in December, large news agencies including Germany’s DPA and France’s AFP complained that sites:

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Copyright Owner Can Serve DMCA Counter-Notifier by Email–Epic Games v. Mendes

3 02 2018

DMCA counter-notifications are rare, and litigation over them is even more rare. So my curiosity is piqued that this is the second 512(g) case I’m blogging in a week (the other: DMCA Counternotification Doesn’t Create Personal Jurisdiction in Copyright Owner’s Home Court–Real v. Matteo). Must be something in the water.

Epic Games makes videogames, including Fortnite. Rak, a Russian, made a Fortnite cheat and posted a YouTube video advertising the cheat. “Epic Games alleges that Mr. Rak’s cheat and video violates Epic Games’s copyrights and trademarks and intentionally induces other players to modify the game and thereby induces those players to violate Epic Games’ copyrights and trademarks as well.” Epic got some press for the quoted legal position when it sued a minor and mom publicly scolded them. In this case, Epic sent a DMCA takedown notice for Rak’s video to YouTube, which complied. Rak submitted a counter-notice to YouTube.

The counter-notification statute requires the counter-notifier to include their “name, address, and telephone number, and a statement…that [they] will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.” Rak’s notice said he lived in Russia, listed his Gmail address, and said he would accept service. Epic located Rak’s email address used for his Fortnite account in its database and sent emails to both the Gmail and second email accounts including a cover letter, a copy of the summons and complaint, and a service waiver request (all in English). Rak did not reply.

 

Case citation: Epic Games, Inc. v. Mendes, 2018 WL 582411 (N.D. Cal. Jan. 29, 2018). The complaint.

 

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The content in this post was found at https://blog.ericgoldman.org/archives/2018/02/copyright-owner-can-serve-dmca-counter-notifier-by-email-epic-games-v-mendes.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



DMCA Counternotification Doesn’t Create Personal Jurisdiction in Copyright Owner’s Home Court–Real v. Matteo

26 01 2018

This case combines one of my favorite Internet Law topics, 17 USC 512, with one of my least favorite, personal jurisdiction. TL;DR: if a foreign national submits a 512(g) counternotification, it doesn’t ensure the copyright owner can sue in its home court.

The copyright at issue involves “Towergirls,” a video game. One putative copyright owner, based in Australia, had an agreement with Matteo, based in Italy, to extend the Towergirls universe. A Louisiana entity also claims partial ownership of the copyright, but wasn’t part of that agreement. Matteo crowd-sourced his effort on Patreon. The relationship soured when Matteo allegedly added nonconsensual sex to his effort and publicly undermined the putative owners’ ownership. The putative owners sent a takedown notice to Patreon. Matteo counternoticed on fair use grounds. The putative owners sued Matteo in Louisiana. Matteo moved to dismiss.

Case citationReal v. Matteo, 2018 WL 493596 (W.D. La. Jan. 3, 2018). This is a magistrate ruling. The plaintiffs did not object, and the district court judge approved it on Jan. 19, 2018.

The content in this post was found at http://blog.ericgoldman.org/archives/2018/01/dmca-counternotification-doesnt-create-personal-jurisdiction-in-copyright-owners-home-court-real-v-matteo.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Can the name of a fictional, intergalactic game evolve into a trademark protectable in the world of mere groundlings?

24 01 2018

In its latest action in a multi-jurisdictional conflict with a mobile gaming producer, Lucasfilm Ltd. LLC and Lucasfilm Entertainment Company Ltd. LLC filed a complaint for trademark infringement in the Northern District of California on December 21, 2017. The complaint alleges, among other things, trademark infringement against a London-based game developer Ren Ventures Ltd. for using the word SABACC as the name of their iOS and Android mobile game. Other causes of action include copyright infringement, cancellation of the defendant’s trademark, unfair competition, common law trademark infringement, and California unfair competition.

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The content in this post was found at http://www.ipwatchdog.com/2018/01/23/fictional-game-evolve-trademark/id=92398/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.



Canadian Court Asserts Jurisdiction over Craigslist Based on Cloud-Based Virtual Presence in Canada

24 01 2018

A Canadian appellate court ruled that a lower court had jurisdictional authority to issue a production order to craigslist based upon its virtual (but not physical) presence in British Columbia. The production order requested that Craigslist produce to Canadian officials documents relating to a user post in connection with a criminal investigation. (British Columbia (Attorney General) v. Brecknell, 2018 BCCA 5 (Jan. 9, 2018)).

This decision highlights another situation where a court blurred the distinction between a physical and virtual presence of a corporation that engages in global e-commerce.  Indeed, we had written about an important Canadian decision last year that involved an American company objecting to an order to delist certain search results globally.  With U.S. companies already concerned about the territorial scope of the EU’s GDPR, they also have to address legal risks associated with jurisdiction by a virtual presence north of the border (and possibly other jurisdictions).

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