12 May 2010

Cyberspace June 2010

Domains

Last month I mentioned that Colombia (.co) has now released second level domain names, which means that I could register calvin.co. If I was handing out free advice, I'd probably say that if you have a .com domain then you should register the corresponding .co domain. Why? Typing .co is a very common typo, and typo squatting is a very popular activity. Google recently said it gets 15,000 redirects a day from google.co.

Trademarks

Being an intellectual property lawyer at the cutting edge is a painful activity. It’s probably quite expensive for some clients too. In the last year we have seen a number of foreign judgements dealing with hard questions, and the most recent is a German appeal in the Oberlandesgericht Dusseldorf in RapidShare AG v Capelight Pictures. RapidShare (http://rapidshare.com) is a file sharing service, where a user can upload files onto RapidShare’s servers. Friends or public users can then download the files from RapidShare’s servers. This has many legal and illegal uses, and Capelight was upset at its copyright material being available on its servers. 

RapidShare does not vet the content placed on the servers, and it is up to the uploader to decide who can access the files. The appeal court held that RapidShare offered a legitimate service, could not reliably automatically vet the content uploaded, and could not easily block regular infringers. The court took care in its decision, noting that even if content scanning was available, the users could simply encrypt the files and make the password readily available. In short, the decision was about whether we could have file servers on the Internet or not. Fortunately the court said yes, unlike the Italian court which effectively held that Google needs to vet every single video uploaded to YouTube.

Another tricky question is the use of thumbnails by Google. If it finds a photograph on the Internet it creates smaller thumbnails to display in search results. The black letter lawyer in me says that this is simply an adaptation of a photographic work and is a breach of copyright. However, the businessman in me says this is terrific, and as long as I control the high-resolution version I am happy for anyone to thumbnail it. The German & USA Supreme Courts agree, particularly in a recent German appeal by Google against an artist. The artist won at first instance, but the Supreme Court held on 29 April 2010 that Google had not infringed copyright, although the reasons have not yet been published. It’s hard to see how the artist could not benefit, although it’s reasonable to argue that the artist should get a cut of any money Google makes (if it’s quantifiable).

Another tricky question is one of advertising. Let’s say that you search for Mercedes-Benz on Google, and on the results page you get the results you expect, but in the right-hand column you see advertisements for BMW. The only way Google knows to put those adverts there is to have a connection between Mercedes-Benz, cars, and BMW. In this hypothetical example, BMW would have told Google that their adverts should be displayed whenever Mercedes-Benz is being searched. Is that a breach of trademark law? Rosetta Stone thought so, because whenever users searched for Rosetta Stone (a language education product) they saw paid results for competitors. Rosetta took action in a US District Court, but failed on the point that Google was infringing their trademarks. A similar case was also run in the European Court of Justice by Louis Vuitton, who also failed. This case was probably more arguable that Rosetta, since the advertisers were actually selling counterfeit Louis Vuitton goods,