US court upholds free / open source licences

Great news for the free software / open source world - in Jacobsen v. Katzer the US Court of Appeals for the Federal Circuit (a leading US IP court) has upheld a free software licence in a way which makes it much easier for the authors of free software to prevent its misuse. (The particular licence is the Artistic licence, but the principles apply across the board).

This is hugely significant as it resolves what has, until now, been a major dispute as to the effect of free software licences in US law.

The mainstream view - that of the proponents of free software (1, 2) - has been that free software licences set conditions on the use of the software. Breach those conditions (e.g. by modifying and then distributing code under a proprietary licence, or by failing to attribute) and the licence evaporates so that you are then infringing the copyright of the author. The full force of copyright law can then come into play - you can, for example, have an interlocutory injunction awarded against you restraining you from using the code.

Some, though, have argued that a free software licence amounts to a general licence to copy, modify, etc. with mere contractual restrictions on what the licensee can do. (E.g.) If true, this would mean that breaching the terms of the licence would merely be a breach of contract, not a breach of copyright. This would, for example, make it more difficult for the author to obtain an injunction against the infringer. It might also cast doubt on the enforceability of free software licences, for example by requiring authors to show that the elements of a contract were present before they could enforce restrictions against infringers.

Jacobsen v. Katzer resolves this argument conclusively in favour of the mainstream view, and holds that while free software licences may also have a contractual element, the restrictions they impose are conditions and not merely contractual restrictions. It also contains a striking judicial endorsement of the objectives and legitimacy of open source / free software generally.

Lessig and Groklaw have more.

Judge: Bulletin board users "say the first things that come into their heads"

In Smith v. ADVFN Plc & Others Mr Justice Eady of the English High Court recently showed a keen insight into the world of bulletin boards by noting that users are prone to reacting in the heat of the moment, not thinking about what they are doing, and saying the first thing that comes into their heads. A statement of the blindingly obvious? Perhaps. But the underlying point is important.

A perennial problem with defamation on the internet has been that of tone. Casual conversations - on bulletin boards or blog post comments - can feel as though they are transient and ephemeral. People write in a way which they would never use in a more formal setting such as a newspaper's letters page. But this perceived informality may clash with the approach taken by libel lawyers and courts, who are used to parsing newspaper articles closely for any possible defamatory meaning and who may apply this approach to turn the loose language of a post into something defamatory.

Offline, casual conversations also benefit from the more relaxed rules of slander, where oral (as opposed to written) communications generally don't give a person a right to sue for defamation unless they have suffered actual damage as a result. Online, though, the distinction between slander and libel evaporates so that (in most jurisdictions) an internet posting - however casual - will be treated as libel rather than slander, giving a person a right to sue irrespective of whether they have suffered any actual harm.

Significantly, however, in Smith v. ADVFN Mr Justice Eady took the informal nature of bulletin boards into account in deciding whether a claimant had a chance of succeeding in a defamation action, holding that these cases should often be treated as closer to slander so that the casual nature of posts should be taken into account when interpreting them. His summary of "the nature of bulletin boards" is worth quoting in full:

13. It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development. This is central to a proper consideration of all the matters now before the court.

14. This has been explained in the material before me and is, in any event, nowadays a matter of general knowledge. Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or “give and take”.

15. The participants in these exchanges were mostly using pseudonyms (or “avatars”), so that their identities will often not be known to others. This is no doubt a disinhibiting factor affecting what people are prepared to say in this special environment.

16. When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a “thread” and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.

17. It is this analogy with slander which led me in my ruling of 12 May to refer to “mere vulgar abuse”, which used to be discussed quite often in the heyday of slander actions. It is not so much a defence that is unique to slander as an aspect of interpreting the meaning of words. From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious.

More on this case - including the way in which the claimant attempted to use defamation actions to silence his critics - at The Register.

Fake Facebook profile case - Full decision now available

Remember the libel action brought by a businessman against a former friend who created a false Facebook profile under his name? The full text of that decision is now available on BAILII as Applause Store Productions Ltd and Firsht v. Raphael. The bulk of the decision is unremarkable and deals with the (unconvincing) attempts by the defendant to deny that he was responsible for creating the page, but there are some interesting comments showing how judges are putting a figure on damages where material is only available for a short period of time to a relatively small number of people:

Ultimately, I have to approach the question of damages in the same way as a jury would, giving a verdict without a reasoned judgment. I bear in mind, of course, that the profile and group were only available on Facebook between 19th/20th June and 6th July 2007, when Facebook appears to have taken the material down at Mr Firsht's request. Given the times when the material was put up and taken down, that is a period of 17 days (for the profile) and 16 days (for the group). I bear in mind also the limited extent of proved publication, but I accept that Facebook is a medium in which users do regularly search for the names of others whom they know, and anyone who searched for the name Mathew Firsht during those few days will have found the false group without difficulty. In my view, a not insubstantial number of people is likely to have done so. By that I have in mind a substantial two-figure, rather than a three-figure, number. I also accept that the Defendant has increased the hurt and upset of Mr Firsht by the allegations which he rashly made in his original Defence and by his persistence in a defence which I have founded to be built on lies, which has compelled Mr Firsht to give evidence and face lengthy cross-examination in a public trial.

The libel is, as Ms Skinner rightly said, not at the top end of the scale, although it is serious enough to say of a successful businessman that (as I have found the words to mean) he owes substantial sums of money which he has repeatedly avoided paying by lying and making implausible excuses, so that he is not to be trusted in the financial conduct of his business and represents a serious credit risk. I do take into account also the effect on Mr Firsht of the unpleasant allegations against him which the Defendant made in his original Defence, and the fact that the Defendant has persisted to trial in a case which I have found to be no more than a lie. It seems to me that a proper award for the libel of Mr Firsht, to include an element for aggravation of damage, is £15,000. The pleaded meaning in the case of the company - against which the allegations of debt and dishonest prevarication are not directly made - is just the consequential meaning, that as a result of Mr Firsht's conduct the company is not to be trusted in the financial conduct of its business and represents a serious credit risk. It seems to me that a substantially lower award should be made in respect of the company, and in my judgment the right figure is £5,000.

Funniest name for a firm of solicitors in Ireland?

When I read that an Irish firm of solicitors was named "Argue and Phibbs" I assumed that this was an urban legend. Apparently not:
Sligo Town on the Net has more on this wonderfully named firm.

Bebo, bullying and the law

The Irish Independent recently carried a story about what may be the first Irish case involving social networking to reach court:

A man has been prosecuted for putting offensive and obscene messages on social networking site Bebo in what is believed to be the first case of its kind to come before the Irish courts.

Paul Anthony Matthews (27) posted what a judge described as "outrageous" messages on a teenage girl's site on January 31 this year.

Matthews, of Carnbeg, Doylesfort Road, Dundalk, agreed to pay the victim €3,000 instead of going to jail.

The pioneering case was brought under Section 13 (1) of the Post Office Amendment Act 1951 for sending offensive or indecent material by means of telecommunication.

Matthews, a father of one, admitted posting explicit and abusive messages on the teenager's site. The victim cannot be identified because of a court order.

Dundalk District Court was told that Matthews had a previous disagreement with the then 16-year-old and posted the messages on her Bebo page. The teenager had made a complaint about Matthews to gardai regarding another matter and the Bebo messages were investigated.

Matthews was arrested and admitted when questioned that he had put up the messages on her site.

So what's the significance of this case? It's certainly not the first time that internet harassment has come before the courts in Ireland - as far back as 1999 a man was convicted of criminal libel for online postings (Mac Ruairí, “Man Jailed for Libel on the Internet”, Irish Examiner, December 21, 1999.) But it does seem to be the first time that this particular section has been applied to the internet, so it might be worth looking at it in more detail.

Section 13 has been heavily amended since it was enacted. (For the tortuous details see the Fourth Schedule of the Postal and Telecommunication Services Act 1983, section 7 of the Postal and Telecommunications Services Amendment Act 1999 and Regulation 4(8) of SI 306/2003.) The most recent change was brought about by the Communications Regulation (Amendment) Act 2007, which substitutes the following for section 13:

“Offences in connection with telephones.
13.—(1) Any person who—
(a) sends by telephone any message that is grossly offensive, or is indecent, obscene or menacing

or

(b) for the purpose of causing annoyance, inconvenience, or needless anxiety to another person—
(i) sends by telephone any message that the sender knows to be false, or
(ii) persistently makes telephone calls to another person without reasonable cause,
commits an offence.

(2) A person found guilty of an offence under subsection (1) is liable on conviction—
(a) if tried on indictment, to a fine not exceeding €75,000 or to imprisonment for a term not exceeding 5 years, or to both, or (b) if tried summarily, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months, or to both.
(3) A contravention of this section is an offence under the Post Office Act 1908.
(4) On convicting a person for an offence under subsection (1), the court may, in addition to any other penalty imposed for the offence, order any apparatus, equipment or other thing used in the course of committing the offence to be forfeited to the State.
(5) In this section, ‘message’ includes a text message sent by means of a short message service (SMS) facility.”.

This is, however, quite a narrow section. It is limited to messages sent by "telephone" (which, while it might be stretched to cover the use of dial up, probably excludes the use of e.g. cable modems). Although it includes text messages it does not mention email or other internet messages and wouldn't seem to be wide enough to include them (a point also made by Kelleher & Murray - Information Technology Law in Ireland (2nd ed.) at 690). In fact, the legislative history on this point indicates that "cyber bullying" was expressly excluded from its scope, with the Minister for State (John Browne) rejecting an amendment extending the section to cyber bullying, stating:

The purpose of amending the Post Office (Amendment) Act 1951 was to increase fines to deter nuisance calls to the emergency call answering service, ECAS. The change proposed by the Senators is a wider offence and I understand from the debate on Tuesday that they are particularly concerned about tackling cyber bullying. The issues were raised again today by the Senators. This type of regulation falls outside the remit of the Bill. The sole intention of this provision is to address nuisance calls to the emergency services. I have listened carefully as did the Minister, Deputy Noel Dempsey, to the points raised by the Senators. The purpose of the Bill is to deal with the regulation of a service. The areas raised by the Senators would be more appropriate to the Department of Justice, Equality and Law Reform.

To respond to Senator Terry, it is an offence under section 10 of the Non-Fatal Offences against the Person Act 1997 to harass a person by use of any means, including by use of a telephone. Therefore, the issue is already dealt with to a certain extent.

Consequently (though bearing in mind we only have media reports to go on) it's hard to see how this section was applied to the defendant's conduct in this case.

(It may be, however, that the prosecution mistakenly had in mind the previous version of section 13(1) which appeared to be substantially wider in that it prohibited the sending of any grossly offensive etc. message "by means of the telecommunications system operated by [any authorised undertaking]" - a formula which may have been wide enough to include internet connections.)

Instead, one would expect this type of situation should be dealt with (if criminal charges are necessary) by the offence of harassment under section 10 of the Non Fatal Offences Against the Person Act 1997, which explicitly includes communication with a victim "by any means".

At this point one might wonder - so what? Does it matter whether this conduct is dealt with under one of these offences rather than the other? I'd suggest that it does. Section 13 is designed to deal with nuisance telephone calls. These are peculiarly direct, immediate, personal and invasive of one's privacy. Consequently the law applies a low threshold - a single instance of gross offensiveness - before these become criminal. But this is very unusual. The law doesn't generally criminalise mere offensiveness, even gross offensiveness, nor should it. But if section 13 were extended to all internet communications then it would have just that effect - prohibiting a great deal of speech on the basis that some readers might find it grossly offensive. (Something which would, for example, make criminals of those who post the Danish cartoons portraying Mohammed.) Indeed, as Eoin O'Dell recently reiterated "It is precisely to allow the expression of offensive opinions that the right to freedom of expression is necessary."

Having said that, there may be a case for extending section 13 or a similar provision to some internet communications. For example, nuisance emails and instant messages share many of the characteristics of text messages, and in some circumstances messages left on a person's social networking page might be as invasive. But any extension of the law must be carefully limited to avoid damage to freedom of expression.

Free books on technology and the law - A reader's guide

A 19th Century Irish judge (Sir James Mathew) once said that "In England, justice is open to all – like the Ritz Hotel." Although litigation has not become much cheaper in the meantime, there has been an explosion in the number of high quality books on law and technology available for free download - both free as in beer and free as in speech. Here are some of my favourites.

It's almost obligatory to start with Lawrence Lessig, who was one of the first lawyers to make his work freely available and was instrumental in setting up the Creative Commons movement to enable others to do likewise. Three of his books are available:

Free Culture is one of the more influential books on the use and abuse of intellectual property law and at the same time manages to be both readable and entertaining.

Code 2.0 scarcely needs an introduction. Lessig's analysis of how code can be used as a form of regulation, and the risks this presents, was an instant classic when first published in 2000 and this second edition confirms that many of his insights have become increasingly relevant in the meantime.

The Future of Ideas is another classic - covering much of the same ground as Code and Free Culture, it looks at what he calls the corruption of the values of the early internet, an internet counterrevolution which threatens to stifle creativity and innovation.

Building squarely on Lessig's work, Johnathan Zittrain's The Future of the Internet - And How to Stop It is a perceptive discussion of how the innovation and freedom permitted by an open internet is under threat from increasing restrictions both on the network itself and the devices which connect to it.

On a similar topic is Matthias Klang's doctoral dissertation, Disruptive Technology. He argues that new technologies "disrupt the, previously established, social norms that make large parts of our democratic social interaction" while simultaneously the regulation of new technologies may undermine democratic participation, for example by imposing contractual restrictions on speech online which would not apply offline.

The Wealth of Networks by Yochai Benkler covers some of the same ground, but has a different focus in arguing that a networked environment and a growth in the sharing of information (such as via Creative Commons licences) brings about deep, structural changes in society - notably a shift from markets to non-market social behaviour - which face resistance from a variety of entrenched incumbents who stand to lose out.

Turning specifically to privacy, Daniel Solove's The Future of Reputation is a superb look at the interaction of privacy, reputation and freedom of expression on the Internet, and takes a broad view of how social mechanisms such as shaming might develop online.

John Logie's Peers, Pirates and Persuasion is an interesting and enjoyable look by a non-lawyer at the growth of a maximalist copyright system and specifically the rhetoric used by each side in the "filesharing wars". (That link appears to be unreliable, but the book is also available on Scribd.)

Perspectives on Free and Open Source Software, edited by Joseph Feller and others, is a collection of essays covering a wide range of issues such as: the motivation of contributors to open source software, the security issues it presents, the business model underlying it, the challenge of open source for the legal system and the application of open source / free software principles in the world of science. This remains possibly the best introduction for anyone (lawyer or not) curious about free / open source software.

The OSCE Media Freedom Internet Cookbook is another must read. This collection of essays by various authors offers some very interesting perspectives on the challenges of reconciling individual and media freedom with regulation of the internet while also covering a variety of topics from "hate speech" to internet hotlines to education for media literacy. In particular, Gus Hosein's piece on the Open Society and the Internet is a perceptive look at the promises of and threats to internet freedom.

Last, but certainly not least, is a collection of essays by the individual who started many of these debates about opening software, knowledge and society. Free Software, Free Society: Selected Essays of Richard M. Stallman includes classic pieces such as "The right to read" and "Why software should be free".

Ireland's first case on the legality of screen scraping?

The Sunday Business post reports that Ryanair has started proceedings in the High Court against Bravofly seeking to prevent it from screen-scraping the Ryanair site in order to provide users with a portal through which they can compare fares across airlines.

Ryanair have been trying to block screen scrapers for some time now. Most recently they were rapped on the knuckles by the ASA for placing advertisements telling consumers that:

"IF YOU BUY A RYANAIR TICKET THRU AN ONLINE AGENT YOU'RE BEING RIPPED OFF... *THEY OVERCHARGE BY 100% OR MORE *THEY DON'T PROVIDE CORRECT TERMS AND CONDITIONS *THEY DON'T NOTIFY SCHEDULE CHANGES *THEY DON'T PROVIDE WEB CHECK-IN OR PRIORITY BOARDING"

This seems to be the first time, though, that they have resorted to legal proceedings and the first time that the Irish courts will consider the legality of screen scraping. From the report in the Sunday Business Post it would seem that Ryanair is primarily relying on the restrictions imposed by its terms of use, but presumably we'll see argument as to whether screen scraping violates their rights under the Database Directive (though whether this claim will stand up in light of the British Horseracing Board caselaw is another matter). OUT-LAW have some analysis of the uncertain position under English law, while this article in the Loyola Consumer Law Review gives an up to date summary of the position under US law.

Update 8.07.08 - The Irish Independent and Irish Times have more details. From the Irish Times:

Ryanair has claimed the alleged "screen-scraping" activities of Bravofly breach provisions of the Trademarks Act and the Copyright and Related Rights Act, amount to "passing off" and also breach the conditions for accessing the Ryanair website.

It claims that Bravofly, without permission from Ryanair, has offered detailed information on Ryanair's flight services and had also used Ryanair's name and harp device logo in presenting that information.

It also claims that Bravofly has established and maintains hypertext links from its websites to the Ryanair website, without Ryanair's authorisation.

Ryanair claims it had written to Bravofly asking for undertakings that the screen-scraping activities would cease but no such undertakings had been received.

Ryanair is seeking court orders restraining the alleged activities and also wants damages, including exemplary damages, and/or an account of profits for alleged negligence and/or wrongful interference with Ryanair's economic interests and contractual relations.

The airline contends the matter is of real commercial significance as its website is at the heart of its marketing and sales strategy and some 98 per cent of its flight bookings are transacted via the website. Any action which wrongfully impinges on the effectiveness of the Ryanair website has an impact on sales and marketing activities and the attractiveness of the website as a platform for the advertising and sale of third-party goods and services, it says. It claims the activities of Bravofly are diverting potential business from Ryanair.

Symposium - Privacy v. Publicity in the Virtual World

The Darklight Film Festival is hosting what should be a very interesting symposium on Privacy v. Publicity in the Virtual World this Friday, June 27th in the Film Base, Curved Street, Temple Bar at 10am:

For a new generation of 'digital natives' privacy is no longer a requirement. Web 2.0 has brought with it a transformation in how we view the need for privacy and engage with the public realm - but at what cost? The discussion will be prefaced by a keynote address from Daniel J. Solove, Associate Professor of law at the George Washington University Law School, and author of The Digital Person: Technology and Privacy In the Information Age. Chaired by Irish Times writer Karlin Lillington, the panel will also feature Irish blogging guru Damien Mulley and solicitor/digital rights expert Caroline Campbell.

Issues to be considered include:

* Can bloggers say what they like?

* What's wrong with having nothing to hide?

* Who is really stalking you on Facebook? .. Does anyone care anymore?

* Is there a generation gap in approaches to online privacy?