Exampractice 6 Solution Brent The Cuckoo eggs and the worm



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Exampractice 6
Solution

Brent
The Cuckoo eggs and the worm
Brent may be liable for computer misuse. Worms are malicious code, which affect the users computer and spread themselves without action by the user. In respect of the worm, under UK legislation (Computer Misuse Act 1990, s.3) he would be liable for unauthorised modification of computer material, which carries a maximum penalty of five years' imprisonment (and/or a fine). For the UK legislation to apply there has to be a link with the UK (sections 4 (2) and 5), such as the unauthorised modification taking place there. Thus if a significant number of users in the UK were infected by the worm, this link may be there, albeit that Brent is outside the reach of enforcement of the UK authorities. Brent may be prosecuted in the US under the equivalent US legislation. The Cybercrime Convention of 2001 puts an obligation on Member States to establish offences. CMRIA might be vicariously liable for damages in a civil action.
By contrast the cuckoo egg does not cause any harm or amends the contents of a computer.
Trademark dispute with the Association
CMRIA is trying to obtain a transfer of the .net and .org domain names from the Association. Unfortunately CMRIA has to be advised that there is no appeal to the Uniform Domain Name Dispute Resolution Procedure and that therefore its only chance of success is to sue before a US court for trademark infringement (Trademark Dilution Act) or possibly the Anticybersquatting Consumer Protection Act 2000.
The Anticybersquatting Act means that a person can be liable for damages where there is an intent with bad faith to profit from the goodwill of another's trademark by registering or using a domain name that is identical or similar to or which dilutes a trademark (irrespective of the goods or services of the parties). Just as the UDRP failed, this is unlikely to succeed here, as the Association is making a legitimate good faith, non-commercial use of the name here, which has been existing even before CMRIA registered the trademark, also CMRIA is the acronym of the Association and it has not offered to sell the domain to CMRIA.
Since CMRIA and the Association are not operating in the same field and there is unlikely to be any confusion between the two entities, it could only rely on the protection given for famous marks. It is already questionable whether CMRIA's mark is famous in the sense of its distinctiveness and recognition, especially since it has not been registered for that long. Furthermore it is questionable whether the Association's use of the mark in the domain name is commercial use. Furthermore it is questionable whether there is blurring, tarnishment or disparagement. CMRIA is unlikely to succeed.
Jurisdictional issue
However, if CMRIA decided to bring an action against the Association the question arises which court would be competent. For CMRIA it would be easier to sue in its local Californian district court. However, this court can only assert jurisdiction over the Connecticut defendant if the due process clause of the Constitution (and the long arm statute of California) allow this. For this, the CMRIA has to establish that the Association had minimum contacts with California (International Shoe Co v Washington State), such as doing business there or committing a tort in California. Essentially it must be foreseeable to the defendant, that because of its actual business' contacts or other activities in the forum state it may be hauled into the courts of the forum state (here California). Regarding Internet activities the courts have established the test in Zippo v Zippo that this depends on the degree of interactivity of a website. Electronic contacts with the forum state such as making files available for downloading are clearly sufficient (Compuserve v Patterson). In recent cases the courts have slightly moved away from the Zippo test (as websites are more and more interactive anyway) and have also looked at whether the defendant has targeted its conduct to the forum state (Calder v Jones test, see e.g. Hy Cite Corporation v Bad Business). Here, the Association's website is fairly interactive in that it features a newsletter and a discussion forum. Furthermore users can download software. The participating rate shows that the website is of interest to people in California and the Association knows this, as users from California have registered, furthermore it carries an article of interest. Thus the website is interactive and targeted to California and jurisdiction is likely.
Copyright
Finally CMRIA also complains that the Association has developed software which circumvents the copyright protection mechanisms of music video clips.
First of all, one practical piece of advice would be to say that CMRIA could issue a notification to the Association's ISP asking for the material to be blocked under the notice and take down provisions of the DMCA. The ISP would then be under an obligation to take the material down and inform the Association. If the Association issues a counter-notification, then the ISP would have to put back the material. However in the fist instance they have to take the material down.
The DMCA makes it a criminal offence to manufacture, import, offer to the public or provide means to circumvent copyright protection technology. The Act also states that a person injured by the violation of these copyright protection offences may bring a civil action for damages or obtain an injunction.
There have been several cases in the US on the relationship between fair use and copyright protection technology. The question here is whether if copyright protection technology prevents a person's fair use (exception to copyright), whether the person is allowed to circumvent the technology (or distribute means to circumvent such technology). For example in the recent case against 321 studios (maker of a software called DVDX-copy software, which allows for copying DVDs) judges in California and New York had ruled that it violated the DMCA and injuncted 321 studios from selling it. The case has now gone to appeal.
In the case against Elcomsoft and the Russian programmer Skylarov, a jury had found that he did not have the requisite intention, ie his programme circumventing the Adobe copyright protection for eBooks was not intended to allow copyright infringement.
The issue here is that the DMCA does make no exception for fair use, but prohibits the circumvention of copyright protection mechanisms whether or not the purpose of such circumvention (or distribution of circumvention) means is fair use. Thus in the present case the Association is unlikely to have a defence (even though the act of transforming voice into text for the benefit of deaf persons may well be fair use).


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