Ebay not responsible for protecting trademarks

After being fined $65.8 million for failing to stop the sale of counterfeit goods, it looks like Ebay have had scored a major legal victory in a four year long law suit with Tiffany & Co. Tiffany & Co claimed that Ebay turned a blind eye to the selling of counterfeit goods on their website.

In his judgement, Judge Richard Sullivan stated that "It is the trademark owner's burden to police its mark and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring on their websites." Furthermore, Judge Richard Sullivan said that Tiffany's claim was denied because they targeted Ebay instead of the individual sellers, as Ebay has taken all steps to take down fraudulent listings as soon as possible.

This is a huge win for consumers, and ultimately says that protecting trademark lies with the rights owner. There was also concerns for snowballing law suits, as this could set a dangerous precedent for Ebay and other online 'auction' sites. However, it is still early days, and it is likely that this decision will be appealed by Tiffany & co.

Update in Google v Viacom showdown: Google wins agreement to anonymise YouTube logs

After the landmark judgement in which Google was ordered by a New York Judge to hand over data containing usernames and IP addresses of users who viewed YouTube clips which contained copyrighted material, Google has been allowed to anonymise the data. This partially diffuses fears about the privacy of users on the Internet, as a decision to disallow anonymising the data would have had serious repercussions for users. It would be like a television station being asked to uncover the names and addresses of all viewers of a certain show in which copyright was infringed (which anyone would agree would be a gross violation of privacy). Why should Internet users not have the same rights to privacy?

However, Google employees will be exempt, and they will determine how to share this information in the coming weeks. This is likely in a bid to prove that Google was aware that there was copyrighted material on YouTube.

The Electronic Frontier Foundation have argued that this order threatens to expose deeply private information. They further claim that this is a violation of the Video Privacy Protection Act 1988. The act has several important provisions:

• A general ban on the disclosure of personally identifiable rental information unless the consumer consents specifically and in writing.
• Disclosure to police officers only with a valid warrant or court order.
• Disclosure of "genre preferences" along with names and addresses for marketing, but allowing customers to opt out.
• Exclusion of evidence acquired in violation of the Act
• Civil remedies, including possible punitive damages and attorneys fees, not less than $2500.
• A requirement that video stores destroy rental records no longer than one year after an account is terminated.
• The VPPA does not preempt state law. That is, states are free to enact broader protections for individuals' records.

As a federal court noted with respect to the civil discovery subsection:

… in construing the scope of the Act, this Court must strive to protect this aspect of an individual's right to privacy in the face of technological innovations that threaten this fundamental right.

Dirkes v. Borough of Runnemede, 936 F.Supp. 235 (D.N.J. 1996). Accordingly, a YouTube video qualifies as audio visual material under the VPPA.

Furthermore, it appears that Google have made yet another privacy faux pas. It appears that through their Google calendar, users can access other users gmail addresses. It doesn't seem to be a good year for Google and privacy.

Viacom vs Google: "We want some of that Internet Moneh"

Viacom, who own the likes of Comedy Central, Nickelodean and Dreamworks studios, is involved in a $1 billion law suit with Google, claiming that they have infringed copyright. In response, Google has warned that websites which rely on user generated content could be held responsible for the actions of their users (in a previous article, I explain how Youtube and Ebay are under fire for the actions of their users). Viacom's claim is directed at user generated clips which infringe copyright on Google's popular video sharing website.

In a landmark decision, the July 1 hearing ordered that Google allow Viacom access to what people watch on Youtube, which is what consumer advocates have warned is a violation of privacy and could lead to Viacom targeting individuals for infringement. Google have already been under fire for their privacy policy, and in light of this it could be predicted that further advocation for stricter privacy policies.

Furthermore, although a fair use defence was once successful as Youtube usually allows for the sharing of small clips rather than full length episodes, Viacom have argued that they can now make money off advertising by releasing those clips appended with ads over the online network. It appears that Viacom are going the route of the writers, and they now want some of that Internet money.

This ruling has also been heralded as another blow to the Digital Millennium Copyright Act (DMCA), which has provided protection to websites from user actions if they comply with take down notices to remove illegal material. The Grokster case in 2005 was a huge blow to the DMCA, where it was found that the website was responsible for the illegal sharing of copyrighted material (with similar outcomes in the similar suits against Napster and Kazaa). Although interestingly enough, both are still in existence post law suit, with a few minor changes.

Further more, it is interesting that Viacom does not appear to practise what is preaches. Chris Knight posted his tv commercials for his campaign on Youtube to get on the school board where he lived, which VH1, a Viacom owned brand, used without his permission in a segment on one of it's shows, Web Junk 2.0. He then posted the same clip from VH1 to post on his blog, which was then taken down by Youtube due to infringement of Viacom's copyright. However, he then filed a DCMA counter claim (a right which apparently few know about according to Fred von Lohmann at the Electronic Frontier Foundation), which was sucessful. Effectively, Viacom took material without permission, used it for it's own commercial purposes, and then issued a take down notice when the copyright owner posted the clip to Youtube!

How to: take a screen shot on your mac.

Okay, there are three different ways to take screen shots on your mac.

Shift + apple key + 3 - Captures entire desktop to a file on the desktop as 'picture #' . This option lets you capture the whole screen. If you want just one window on your screen, you will have to edit the picture using image editing software.

Shift + apple key + 4 - Allows you to use your mouse to select a specific part of your desktop for capture. This will turn your mouse pointer into a cross, please hold down the mouse button and drag to select the part of the screen you want. When you release the button the screenshot will "snap" that part of the screen. Press 'Esc' to release. I used this one to take the screenshots for this blog.

Shift + apple key + 4 then press spacebar - Allows you to select which window to capture.

Ebay and Facebook in the headlines yet again

In the emergence of large, profitable websites, there also appears to be an equal number of large and costly law suits against the companies that create these websites. While Ebay and Facebook would apparently have little in common, they are both the centre of recent controversy caused by third parties.

Ebay has recently been fined $65.8 million dollars for failing to stop the sale of counterfeit goods on their online auction site in favour of six LVHM brands (which includes brands such as Louis Vuitton). Ebay have indicated that they will appeal the decision. Similarly, although no action has been taken against Facebook itself, Matthew Firsht has taken an action for damages for a false profile set up on Facebook which made claims about his sexuality and the financial viability of his company.

Ebay has also been the centre of legal controversy in the case of Evagora v Ebay. Evagora successfully bid for a computer in an eBay hosted auction, which was paid for but never arrived. The seller of the computer was based overseas. Evagora claimed for his loss against eBay, arguing that he did not read eBay’s user agreement, and that EBay represented that the auction site was safe, which overrode the terms of the user agreement. EBay was held liable by the Tribunal for the loss suffered by Evagora.

It is therefore question of whether such websites can be accountable for the illegal acts of their users. For ISP's, the answer is that they are protected from liability, unless other circumstances apply (for example, they are issued with a take down notice, example). Should such companies be help responsible for the acts of their users, especially when they are not acting in accordance with the site EULA.

On Slashdot recently was an article about a man called Hiroyuki Nishimura, who has been taken to court over and over again over his site he has created, Japanese site 2channel. While he is happy to comply with mandates to delete things, he refuses to pay any money. He says, in the article, "Would a cell phone carrier feel responsible when somebody receives a threatening phone call?".

How to: set up Expose on your mac.

Ok, this is quite easy. For Mac OS X Leopard, you simply open up system preferences which is located under the apple in the top left corner). Click on Expose and Spaces on the top line, and then make sure you are in the Expose window. Then set up which corner of the screen you would like to have active when the mouse is moved to that corner, and what you would like to happen (eg. go to desk top, view all windows). I have mine set up so that I can see all the windows I have open when I move my mouse to the bottom right corner of the screen.