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Thursday, 17 April 2014

No lien over database

In Your Response Ltd v Datateam Business Media Ltd [2014] EWCA Civ 281 [2014] WLR (D) 131 (14 March 2014) the Court of Appeal (Moore-Bick, Davis, Floyd LJJ) held that, because there is nothing about a database that can be possessed, it is not possible to exercise a lien over it - as a mechanic would over a car he has repaired and not been paid for.
Not surprising: but someone must have thought it was worth a try!

The Copyright (Regulation of Relevant Licensing Bodies) Regulations 2014

The Copyright (Regulation of Relevant Licensing Bodies) Regulations 2014 came into force on 6 April. The Regulations support relevant licensing bodies' self-regulatory codes of practice. As the Explanatory Memorandum says:
The Secretary of State may direct a relevant licensing body to adopt a code that complies with the specified criteria if three circumstances are met. These are that the relevant licensing body is not a micro business; that it has no code of practice or the one that it has does not comply in material respects with the criteria specified in the regulations; and that it has not amended its code of practice within 49 days of being informed by the Secretary of State of the noncompliance. The Secretary of State may then impose a code on a relevant licensing if the body fails to adopt an appropriate code within a further 49 days of having been directed to amend its code. The Regulations also enable the Secretary of State to appoint an independent code reviewer and an ombudsman, and to impose sanctions in the form of financial penalties on the relevant licensing body for certain breaches of the Regulations.
You can read the  platitudinous press release here, and from there you can follow a link to official 'legal guidance'. Not advice, I note.

Friday, 11 April 2014

'Internal' distribution does not mean GPL is not invoked

Chicago software licensing attorney Evan Brown  notes an interesting case, XimpleWare Corp. v. Versata Software, Inc., 2014 WL 490940 (N.D.Cal. February 4, 2014), one of very few which address the workings of the General Public Licence (in suit, GPLv2) - a document which becomes more and more important every day.
The plaintiff (as they still call them over there - how quaint! Oh, sorry, I forgot that British irony would be completely lost on any American readers) wrote an XML parser and made it available under GPL v2. The defendant acquired software from another vendor that included the code, and allegedly distributed that software to parties outside the organization. The plaintiff argued that the defendant did not comply with the conditions of the GPL (no attribution, no copyright notice, no reference to the plaintiff's source code, no offer to 'convey' as the GPL puts it the source code), and sued for copyright infringement.
The defendant's argument was that its 'distribution' of the software was merely internal, mainly to its own financial advisers, so the GPL's requirements were not triggered. The court rejected defendant’s argument, looking to the allegations in the complaint that defendant distributed the software to vendors in India, as well as providing it to 'thousands of non-employee financial advisers.'

A clean and pleasant trade - revisited

Legal Futures reports that the most senior judge in the Isle of Man, no less, has told Applebys, the international law firm, that they do indeed have to join the local profession's indemnity scheme even though they have their own insurance cover. Nothing for this blog there - but what did interest me was that the judge (or Deemster, as they call them there) made some comments - perhaps somewhat unfashionable comments, but to my mind all the better for that - on the obligations of professional people. And to support him he cited no less an authority than Karl Marx (1818-1883, if you'd forgotten), whose 1835 work Reflections of a young man on the choice of profession suggested that the “chief guide which must direct us in the choice of a profession is the welfare of mankind and our own perfection”.

Dishonesty does not necessarily preclude claim

In Lloyds TSB Insurance Services Ltd and Halifax General Insurance Services Ltd v James Michael Shanley [2014] EWCA Civ 407  the appellants failed to get the judgment of Pelling J (unreported) overturned despite the fact that the claimant had lied in the course of the proceedings. The claim was for infringement of copyright in a software tool and for breach of confidence, and the defence was that Halifax had a licence and that Lllyds had a sub-licence under it.

The case against Halifax failed because the evidence (such as it was, even after the claimant had demonstrated himself to be unreliable) showed that there was an oral agreement allowing the bank to use the software tool in question (although a forged written licence quite rightly cut no ice). The question was whether Halifax had been entitled to grant a sub-licence to Lloyds to use it, too, and the judge had little difficulty in finding that they didn't. Just because the claimant had told lies did not mean that Lloyds' claim that they had the benefit of a licence would succeed. 

Amount of private copying levy may not take account of unlawful reproductions - Court of Justice

The Court of Justice has held that the amount of the levy payable for making private copies of a protected work may not take unlawful reproductions into account, in Case C-435/12, ACI Adam BV and Others v Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie vergoeding (the link is to the press release). The Court took the view that the law should not tolerate unlawful reproductions, so the law has to draw a distinction between private copies from lawful sources and others. National legislation which does not distinguish between lawful and unlawful private reproductions cannot ensure a proper application of the private copying exception. The levy system must ensure that a fair balance is maintained between the rights and interests of authors and users, and if it does not distinguish between lawful and unlawful reproduction that balance is not struck.

Thursday, 6 March 2014

A Run Through Intellectual Property Law

If only there were more hours in the day. I have finally launched the lecture series I have been talking about for years, under the general title A Run Through Intellectual Property Law. This link will take you to the page from where the recordings can be downloaded. I envisage nine lectures to cover the basics, of which I have recorded three so far: they are each about an hour in length.

Feel free to listen, and download the files to listen to on your choice of device if you wish. Just don't share them with your friends, as I would prefer you to send them to this site to download their own copies. If you have any requests for subjects I might cover in the future, please let me know - leave a comment or email me at peter@ipsojure.co.uk. If you have comments on the content, including corrections, please let me know too, but bear in mind that these lectures reflect the law on a specific date and won't be updated very frequently.

Friday, 31 January 2014

Going home: Coleman on legal education

Ron Coleman, of Likelihood of Confusion fame, is one of the most perceptive legal writers (and probably the most perceptive legal blogger) I know, although when he gets onto politics I find my hackles rising ... well, it would if I were the sort of animal that had hackles in the first place, and if I were a dog or a cat I wouldn't know much about politics, or be able to read what Ron writes on the subject. Oh dear, this seems to be getting complicated. Let's see if I can get back to the point.

Although it seems to be a post from a couple of years ago, leading eventually to a 19-year-old article, 'Go Home ...' is horribly relevant today. Back in '95 when Ron wrote the original article I was teaching would-be (or as people might say now, and perhaps would have said even then, 'wannabe') solicitors who were attracted by the notion that it was a 'clean and pleasant trade' (follow his links and allow Ron to educate you about that phrase, if, like mine, your upbringing didn't already make it familiar). And I was wondering why on earth many of them had ever thought they might stand a chance.

I found my way easily - too easily - into the legal trade. At the time, I thought it was a profession, and perhaps it was, until about 1984 when advertising restrictions were lifted. After that it quickly turned into a business, which at first seemed progressive and exciting, but perhaps the deficiencies of my route into the law were brought into sharp relief by that change. Although my father couldn't teach me the clean and pleasant trade, he could arrange for his best friend to do it, and in due course, after three years at university during which I learnt a great deal about politics, photography, journalism and real ale but very little about law, followed by a very miserable six months at the College of Law studying the new wave music that was sweeping the country at the time, followed inevitably by another six months cramming to resit the Law Society Qualifying Examination, Part II (an examination of such stunning mindlessness that has surely never been surpassed, although from what I hear the Multistate Bar Exam might run it close), I became articled to him. If you lost track of that sentence, as I did, the 'him' to whom I was articled was my father's best friend, senior partner in the equal-largest firm in Teesside, which in those days meant six partners: there were three other behemoths with the same number of partners in the area.

I realise now that my articles were a further period during which I learnt no law (but did learn even more about politics). It wasn't a great start to a career in a learned profession, but once I'd qualified I did begin to learn some law, not only on the job but also by pursuing a formal part-time course of study which led first to being awarded a Masters degree in business law, then in due course to a doctorate, and finally to a (still part-time) position at the institution that had finally given me some legal education, teaching those would-be solicitors on the new Legal Practice Course, the successor to the Law Society Finals which had replaced the unlamented Part IIs. By this time - the mid-nineties - it was firmly in the business of law student farming, in Ron's apt phrase. The parallel with the fermiers who played such an important part in causing the French Revolution is striking.

Between the late seventies and the mid nineties, legal education shifted from being a system that one could negotiate with little effort, coming out with a 'gentleman's degree' and scant knowledge of the law and moving comfortably into a clean and pleasant profession, to one which demanded hard work, much learning, and considerable expense, the end of which was admission into a far-from-clean and definitely unpleasant trade. But there remained several hurdles, even for those who had passed the LPC (and the fermiers certainly saw no advantage to failing any of their students). First, the aspiring solicitor needed a training contract.

A large number of students only embarked on the LPC after securing an offer of a training contract. Often they would be sponsored by the firm with which they would complete that final stage of their training. But many didn't, and for years after they moved on I was still writing references for students who needed to persuade a solicitor to take them on. One of them tragically succumbed to breast cancer shortly after qualifying, having secured a training contract several years after passing her exams. And to this day there is still a colossal mismatch between the production of aspiring solicitors and the capacity of the profession to absorb them. A friend who had completed her LPC a few years ago searched for a long time for a training contract, finally accepting the only one offered which was quite unsuitable and made no use of her impressive qualifications and experience; now having qualified she faces a difficult search for a job.

Ron - if I may be permitted to return to the point of this rambling discourse - remarks at some length on the vicissitudes of applying for jobs. A 'gentleman's degree' is an immediate disqualification, no matter that it be supplemented with a doctorate: the way applications are filtered takes no notice of what follows one's first degree unless it is at least an upper second. I like his comment about the 20 'top ten' law schools ... A similar dilution of the quality of legal education has taken place here, and his comments about how attractive a law school is to a fermier is as relevant in the UK as in the US. The best are excellent, but the bulk of them offer less value - but, however good the legal education they offer, none of them can offer entry into a clean and pleasant trade. Or any trade, for that matter.

Enough, already. I will feel inclined to return to this topic another time. This is a good point at which to stop, for now.


Tuesday, 28 January 2014

Greek yoghurt means yoghurt from Greece

Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2013] EWHC 630 (Ch) (26 March 2013)  is what aficionados call an extended passing-off case. The claimant had been selling Greek yoghurt in the UK for some time, while the defendant introduced what it had previously sold in the USA as 'Greek yoghurt' to the British market sometime later. I sampled it at a running bloggers' conference last year - it seemed OK but with what I know now I'd certainly taste the thickening agent - and even came away with a pair of laces, branded with the Chobani name. I certainly won't be using them: not the sort of brand values I wish to be associated with. Anyway they won't fit my huaraches. Anyone want them? Drop me an email.



Nothing surprising about the passing-off claim here: FAGE won. A bit more interesting is the malicious falsehood sideshow, a counterclaim arising from the claimant's approach to Camden trading standards. The judge noted in particular that as he didn't imagine the trading standards department would take action without investigating the allegations first, there was little chance of the defendants (counterclaimants) suffering any damage.

Wednesday, 8 January 2014

Rights of audience: Law Society secures rule change for IP solicitors - The Law Society

Solicitors will have the same rights of audience in the ultra-trendy Intellectual Property Enterprise Court* as they had in the Patents County Court, the Law Society  says, claiming that its lobbying has brought about this outcome. (I wish it would work equally hard to prevent the unqualified, which as I understand it remains unlawful, use of the title 'attorney' by patent and trade mark attorneys).

Although it was the Chancellor of the High Court who announced that judges would allow solicitors to appear, our too-big-for-its-boots regulator had to stick its oar in:
The SRA has also confirmed that it will not regard solicitors appearing in the IPEC as being in breach of the rules and will change the regulations to make it clear that solicitors have rights of audience.
How kind of it.

*The utterly spurious word 'Enterprise' is what makes it ultra-trendy, although I should make clear that it's the name not the court that I am describing thus.
 

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