Wednesday, July 30, 2008

The crappy situation of the scrapping of Facebook’s Scrabulous

After finishing an article on autonomous robots and the law I’ve finally decided to come back to cyberspace to see what has been happening around here. Many things have been going on that deserve the attention, but the one that clearly has caught my eyes (and my incredulity) is the pulling off of Scrabulous from Facebook due to the lawsuit for trademark and copyright infringement that the owners of the trademark Scrabble have initiated against a couple of guys from India who made the product, that though similar, does not cause confusion and is an improvement from the other (and some of the reactions and misinformation that generated). Not been friendly of using bold in blogs, this time they are proper and deserved because it is based on those highlighted facts that some basics of copyright and trademark need to be reviewed.

Starting with the basics (you would expect that this should be already widely known), and focusing on American law (it is a lawsuit in the US, as I understand it), Section 102 of the copyright law, title 17, United States Code, clearly expresses that:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work

So, either the reports are wrong and Hasbro Inc is not suing the Agarwalla brothers for copyright infringement or the company’s lawyers don’t know what to invent to charge whatever fees they are charging to the American company. What could be the copyright on? A checked board with some coloured boxes? Every possible word that you can make in the game? What? Would love to see the suit, so if anyone has it available, it would be very welcomed…If the copyright claimed is on the design of the board, it should be far too easy to change the disposicion of the coloured boxes (doubles and triples) and get around the problem, so it shouldn't be this the reason for taking the game down.

Then we have the issue of the trademark. Trademarks, contrary to the belief of many, do not protect a name per se, but the association of a name, symbol, etc, etc with a product and, originally, was designed as a form of consumer protection. Thus, while it is true that today trademarks are important intangible assets, it cannot be forgotten that if there is no likehood of confusion, it is very unlikely that trademark infringement will exist.

Let’s start for actual trademarks that Hasbro has. In the US it has 5 live trademarks with only the word Scrabble (it has other 3 but there are a composite of words), some of which require a specific font. Since it seems quite clear that Scrabulous has nothing to do with an “apparatus for playing an electronic word game” (registration number 1136336), “equipment and accessories-namely, anagrams, a dice cup, cubes and a timer for playing a word game” (registration number 0802995), “scoring devices and turn-tables used in the playing of games and board games” (registration number 0589217) or “[game including board and playing pieces] equipment and accessories for playing a board game” (registration number 0525405, and this is the original trademark since 1948), we need to assume that the lawsuit refers to the trademark “Scrabble” for “G&S: computer game programs” (registration 2654348).

So, is there a likehood that people will think that Scrabulous is one of the Scrabble’s computer games that the trademark protects? In order to decide whether likehood of confusion exists, in the US, the place of the alleged infringement, we need to follow the Court of Appeal for the 9th Circuit, that in AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) established that:

In determining whether confusion between related goods is likely, the following factors are relevant:

1-strength of the mark;

2-proximity of the goods;

3-similarity of the marks;

4-evidence of actual confusion;

5-marketing channels used;

6-type of goods and the degree of care likely to be exercised by the purchaser;

7-defendant's intent in selecting the mark; and

8-likelihood of expansion of the product lines.

And the same court had said before that, that evidence of actual confusion may be needed if that is the issue in question, emphasising the importance of factor 4 .

In the present case, there is a strong argument for using the same venue where the name has been used to actually check whether confusion exists. Since the dawn of Internet, IP rights holders have sustained, and the courts have agreed with them, that the use of information technologies change the possibility of infringement to such a degree that it seems to be of a different kind, and the law has been amended accordingly (normally tending to criminalization due to lack of prove of actual damages). So, why not use the same logic to the present case? Instead of wondering whether confusion exists, just ask the users, quite easily and with a couple of clicks, whether they have ever thought that Scrabulous was the same as Scrabble, produced by Hasbro or even endorsed by them…or, will this be another case showing that the irruption of Internet and digital technologies have been used by the IP rights holders to expand their rights and convince governments that taxpayers money needs to be used to combat IP rights infringement, but they are not willing (they are actually avoiding) using the same digital technologies to see whether their claims are true at all? Let's see what the judge decides, but something does not smell good there...

Saturday, July 26, 2008

Randy Pausch is now living in the virtual world

Carnegie Mellon University has announced that Randy Pausch departed this world to keep living in the memories of those who have met him and in the realm of cyberspace.

He said that “we cannot change the cards we are dealt, just how we play the hand” and many of us will enjoy and keep seeing the advance of virtual reality because of the way he played his cards…

Thursday, July 17, 2008

Getting tough with spam

A judge in Manhattan sentenced a 28 years old man to 30 months in jail for sending spam to more than 1,2 million AOL users and also hiding the source of the messages. The case started in 2005, when the defendant and an accomplice discovered how to circumvent AOL anti-spam filters without showing to the recipients the real origin of the emails. In addition to the custodial sentence, the defendant, Adam Vitale, will have to pay 183,304 dollars to AOL in concept of damages. This sentence follows others, like the ones handed down last year, when Jeffrey Kilbride of Venice, California and James Schaffer of Paradise Valley, Arizona were successfully prosecuted for sending out millions of unsolicited email messages promoting pornographic websites and reaping millions of dollars in the process. Kilbride was sentenced to six years and Schaffer was sentenced to five years and three months. While I don’t believe that law alone will solve the issue of spam, it is clear that in some places the issue is been taken seriously. However, it is important to note that most of the spammers that are prosecuted are accused of a bundle of crimes, like mail fraud, wire fraud, e-mail fraud, aggravated identity theft and money laundering, as well as violation of the CAN-SPAM Act, which is necessary to take into account when thinking about the proportionality of sending somebody to jail for six years due to unwanted commercial emails. Still, while theses judicial actions may grab some headlines, they are unlikely to make a dent in the millions of unwanted emails that circulate across the globe in daily basis…

Sunday, July 13, 2008

Google’s Lively, virtual realities and the adieu of Randy Pausch

These days we are dealing with a strange mix of feelings, where the birth of a new space of virtual reality is happening along side the time when one of the masters of virtual reality, Randy Pausch, is leaving this material world (let’s hope that not so soon).

Google has presented Lively, its 3D virtual environment platform, which has not made a good impression on the users. It seems that the user experience for most users is, at best, very bad (I have been waiting for about an hour for my avatar to join the room I created, but I am still waiting), but I don’t think that is a relevant issue for now. Those glitches will be very likely get sorted soon (we are talking about Google here) and the fact that the “virtual room” actually resides in your browser should allow for almost infinite scalability, which due to its enclosed system Second Life could hardly provide. We then go to the terms of service, and here again (I could be accused of having a bias towards the Mountain View company), Google’s ones seem to do what is say on the tin. I have written before about the problems with the Second Life terms of service and the contradictions that they have, which cannot be solved with expression of goodwill from the members of Linden Labs (who without any doubt have the best of the wills). Lively’s terms of service quite clearly establish that the users “own” everything (excepting the software, obviously) and in that way avoiding the inconsistency of SL’s terms of service where the user owns the IP rights (copyright) but Linden Labs the data, which is where the creations are embedded. The fact that in Liverly the user needs to grant a quite broad license is understandable to allow the actual showing, displaying and copying in other users’ computers what the user does. On the other hand, this type of clear cut data ownership would not create the problems of data portability that other virtual reality and social networking sites seem to create/have, which may, paradoxically, give a sense of security to users making them stay. And that is good for business…not only Google’s business but businesses in general: we have only seen the Beta version of Lively and it could be a bit early to prove it, but Lively could be the answer to the failed/non-existent business models of social networks and virtual realities. A 3D room where people get together to talk, chat and share what they want to share by posting things on the walls (their pictures, videos, links etc), which also allows to post on the wall adds, video, links, the Google search engine and anything that you may want to share, show or sale…I don’t like betting (so I never do), but I would do it for Lively…so, this could be the model that take virtual reality 3D from the labs to real main stream use and commerce.

And all happening when the news is that a couple of weeks ago Randy Pausch has suggested that he may stop chemotherapy because the trade-off may not be worth…it could be argue that we wouldn’t have this much to talk about virtual reality without the dedication and the talent of Randy Pausch, and his now famous last lecture confirms that we will always owe to him more than we would be able to express here or there…

Here you have his lecture, and you must take the little more than an hour to watch is worth...

Wednesday, July 02, 2008

Missouri passes cyber-harassment law but in LA the prosecutors are too creative

The story starts from a tragedy: a 13 years old girl, Megan, committed suicide after allegedly receiving a dozen of cruel messages from a “friend” she made in MySpace, who did not really exist and was probably created by an adult neighbour to find out what the deceased girl was saying about her daughter. After the fictional boy, Josh, decided to break-up “his” relation with Megan and a discussion between the girl and her mother, Megan went upstairs in her home and hung herself using a belt.

Prosecutors in Missouri declined to file charges because there were no state law punishing cyber-harassing, so the state legislature changed the law by removing the need for the communication to be written or over the telephone and clarifying that “[h]arrasment includes communication by any means”. It is important to note that, with the information available (we only know that there were about a dozen of “mean” communications), it is unlikely that under the new law the impersonators of Josh would be prosecuted anyway. While being mean and cruel could be morally or socially despicable, it would be strange if judges decide to start putting people in jail for acting in that manner. Furthermore, the new law defines harassment as to frighten or disturb another person and to

1) By knowingly communicating with another person who is, or who purports to be, seventeen years of age or younger and in so doing, and without good cause, recklessly frightens, intimidates, or causes emotional distress to such other person; or

2) By engaging, without good cause, in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the person's age.

We will have to wait what judges decide regarding some thin-skull principles, but the law seems to exclude this rule by making clear and express reference to a “person of average sensibilities considering the person’s age", and the girl Megan had history of depression, which would put her well outside of being of “average sensibility”…

But the adult neighbour is still being charged, in California! Federal prosecutors are using the Computer Fraud and Abuse Act to charge the woman for conspiracy and accessing protected computers without authorization to get information used to inflict emotional distress, in the place where MySpace is located. The statute was originally created to deal with hackers and others who obtained information from a computer, and it is difficult to see how it can be used when somebody is using its own computer to send information. It is understandable the desire of the girls parents to have justice served in a situation like this and the overzealously of the prosecutors when dealing with kids well-being, but the parents would probably find that tort law may give them some answers because it seems that the federal crime one may leave them with a quite bitter after-taste…

Tuesday, July 01, 2008

Facebook finally settles with the Harvard trio

It seems that Facebook had finally settled with its founder’s friends at Harvard, who accused Mark Zuckerberg of copying their ideas when creating the social network site. A preliminary agreement was reached in February, but the final one had to wait until now because the claimants (plaintiffs in the other side of the Atlantic) claimed that the agreement was not complete and that Facebook had committed fraud (this is what I call friendship) by not disclosing information related to Zuckerberg’s stocks. However, the Judge for the Northern District of California dismissed the later claims and rules that the February agreement was valid and summoned the parties to a hearing on July 2 to implement it.
The original suit was brought by the Winklevoss brothers and Divya Narendra, who accused Zuckenberg of stealing the ideas after being hired by the trio to write some code for a site called Harvard Connection. In the agreement Facebook seems to buy Harvard Connection, in a price combining cash and stock but the financial terms have not been published.
Now that this part of the legal issues is over, it is to be seen if Facebook can use the time to try to find a viable business model…

The Third International Conference on Legal, Security and Privacy Issues in IT Law (LSPI)


The Third International Conference on Legal, Security and Privacy Issues in IT Law (LSPI)

Date: September 3-5, 2008 Place: Prague

The International Association of IT Lawyers (IAITL) and the University Economics Prague invite you to participate in the 3rd Intl. Conference on legal, security and privacy issues in information technology law.

The Conference is an opportunity for academics, practitioners and consultants to come together, exchange ideas, and discuss emerging issues in IT law and the emerging technological environment. We invite contributions focusing on Legal, Security and Privacy Issues of IT, including:

· Cybercrime
· E-signatures
· E-forensics and Evidence
· Email monitoring and privacy issues in the workplace
· Data retention & protection
· Intellectual Property Rights
· Contract and Tort
· Virtual Companies
· E-commerce law
· Media & entertainment law
· Data mining
· Internet Freedom
· Phishing,virus,malware etc.
· Trustmarks
· Legal risks and protection strategies
· E-government& edemocracy
· Privacy, Virology and security issues
· Jurisdiction in Cyberspace

· Mobile technology
· Robots &Intelligent agents
· Consumer Protection
· Cross-border ADR and Litigation
· Content Regulation and Liability Issues
· Telecommunication law and technology
· Licensing and franchising
· IT Outsourcing
· Taxation of cross-border transactions
· Jurisdictional barriers to regulation and enforcement
· E-trade
· Audio-visual technology
· Broadband technology
· Virtual worlds: regulation and taxation issues
· Biometrics

The conference committee is seeking submissions of papers for oral presentations at the conference in three major categories:

  • Academic, peer reviewed papers - these papers will be peer reviewed by members of the program committee and other independent reviewers (where necessary) and will be published in the under a non-exclusive copyright agreement in the edited conference proceedings with ISBN. All papers will also be published in several leading international journals. Case studies, abstracts of research in progress, as well as full research papers will be considered for the conference program for presentation purposes. However, only complete papers will be published in the proceedings. Previously published peer-reviewed papers will also be considered, provided the authors (s) are granted license from the publisher and publication information are noted in the article.
  • Presentations based on a short abstract
  • Non-academic papers - these papers will not be peer reviewed. These papers will be selected on merit by the program committee. This category covers corporate papers, best practices, new technologies, policy issues etc.

For complete papers, authors must provide about 150 word abstract and five keywords. There is a maximum page limit of 15 pages (single-spaced, Times Roman”10”). All photos, tables and figures must be in jpg format. Papers must be submitted in the correct template, which may be downloaded from the website.
All information enabling the identification of authors must be removed from submissions undergoing academic peer review. Please send in a separate attachment in a word document, the following information: Title, Affiliation and Author’s Name.

All papers will be proof read and published in paperback and hardbound edition (with ISBN) and in international journals. Elsevier Publishing is sponsoring the Best Academic Papers award.

Send submissions by electronic mail in a Word document to: or

For further information, please contact:

Sylvia Kierkegaard ;

Jiri Strouhal +420606887164.

Submission Deadline for Full Research Papers: August 1, 2008
Submission Deadline for Abstract Presentations: August 15, 2008
Notification of Acceptance: August 3, 2008
For papers submitted before the deadline, authors will be notified 7 days after submission
Final Camera-Ready (Proceedings) Version and Registration: August 10, 2008

For further details about the Conference:

International Law and Trade Conference (ILTC)


International Law and Trade Conference (ILTC)

Date: September 3-5, 2008
Place: University Economics Prague, Prague, Czech Republic

The Conference, organized by the International Association of IT Lawyers in cooperation with the University Economics Prague, provides an opportunity for academics, practitioners and consultants from different backgrounds to dialogue on important issues relating to international law, trade, commerce, and information technology.

We invite contributions on related topics, including but not limited to:

WTO agreement and related matters
Financing and Money Laundering
Environment, Sustainable Development and Trade
Illicit Transfers of Cultural Property
Foreign Investment
State Intervention in Trade
Globalization, National Identity and Free Trade
Trust & Corruption
Transcending Cultural Barriers in Trade
Tourism and Trade
Democracy and Trade
Taxation, Business and Finance
Jurisdiction and Enforcement of Judgments
Internet law & E-Commerce
Privacy and Data Protection
E-government and Procurement
Business and Finance
Maritime Law & International Transport
Media Law
Int’l Arbitration, Mediation, & Dispute Resolution
Sports Law

The conference committee is seeking submissions of papers for oral presentations at the conference. Submission papers are classified into 2 categories:

  • Full paper: These papers will be peer reviewed by members of the program committee and other independent reviewers (where necessary) and will be published under a non-exclusive copyright agreement in international journals and conference proceedings. Previously published peer-reviewed papers will also be considered, provided the author (s) are granted license from the publisher and publication information are noted in the article.

  • Short papers, including case studies, research in progress, or industry practices, are also welcomed as a basis for oral presentation and comment.

All accepted papers will be published in leading international journals.
Authors must provide about 150 word abstract. There is a maximum page limit of 15 pages (single-spaced) for full papers; however, it is anticipated that submissions will be between 4500 and 6000 words. For full papers submitted for peer review, identifying information should be removed. Please send in a separate Word attachment the following information: Title, Affiliation and Author's Name.

When preparing your final version of the manuscript, please ensure that you use the conference template.

Send submissions by electronic mail in a Word document to:

Important Dates:

Submission Deadline for Full Research Papers: August 1, 2008
Submission Deadline for Abstract Presentations: August 15, 2008
Notification of Acceptance: August 3, 2008
For papers submitted before the deadline, authors will be notified 7 days after submission
Final Camera-Ready (Proceedings) Version and Registration: August 10, 2008