Ireland IP & Technology Law Blog : Dublin Lawyers & Attorneys for Intellectual Property, Communications & Information Technology Law in Ireland, U.S. & England

The United States Copyright Office has granted an exemption to the Digital Millennium Copyright Act 1998 (DMCA) that purports to legalise what has become known as "jailbreaking".  According to reports, users can now legally modify their phones to switch networks and run applications not sanctioned by the device manufacturer. Under previous rules, users could be penalised on two grounds for this activity - both for violating the DMCA and breaching the contract in the form of the Licence Agreement between the user and device manufacturer.  However, as a result of the ruling on 27 July 2010, device manufacturers can only accuse users of breaching their Licence Agreement.

Users should be aware that any modification of a device's software may render the device manufacturer's warranty void - in this regard, the device manufacturer is under no obligation to enable jailbreaking on the device and jailbreaking can lead to an unusable or "bricked" device.

The ruling of the US Copyright Office can be found at: www.copyright.gov/1201/
 

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A decision in the US district court has declared that Google-owned website YouTube is not guilty of copyright infringement when users post videos to the site without permission. The Court ruled that liability for copyright infringement only arises once a copyright owner makes YouTube aware of any illegal videos on its site and it fails to act to remove them from its site.

Viacom issued proceedings in 2007; it claimed that YouTube's business was based on copyright infringement and that it profited from the unauthorised use of its copyrighted material.

The Digital Millennium Copyright Act (DMCA) in the US allows online service providers to avoid liability for hosting their users' illegal actions and absolves them of any duty to monitor their service for breaches of the law. Once companies are told of a breach in the law they must act quickly, to the extent they can, to remove the content or become accountable, according to the safe harbour provisions of the DMCA.

Viacom argued that safe harbour protection did not apply to Google because it knew that infringement was taking place on a massive scale. The Court held that it would be improper to hold Google and YouTube liable under federal copyright law merely for having a "general awareness" that videos might be posted illegally: "Mere knowledge of prevalence of such activity in general is not enough. That is consistent with an area of the law devoted to protection of distinctive individual works, not of libraries…The present case shows that the DMCA notification regime works efficiently…When Viacom over a period of months accumulated some 100,000 videos and then sent en masse takedown notice on February 2, 2007, by the next business day YouTube had removed virtually all of them".

The Court noted that previous cases had made it clear that the onus is on the owners of the copyright to find and identify infringing material, not the online service provider.

The Court rejected allegations by Viacom that YouTube was akin to file sharing entities such as Grokster or Lime Wire and that the same legal rules should apply in this case as did in earlier successful actions against those companies.

Viacom said it would appeal the ruling.

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The ‘Innovation Fund – Ireland,’ was launched last week by Taoiseach Brian Cowen. The €500 million fund has been set up to support enterprise development and position Ireland as the “innovation hub” of Europe.

Speaking in the New York Stock Exchange last Monday, Mr Cowen announced the fund as a key part of the Irish government’s Smart Economy strategy, designed to assert Ireland as “the best place in Europe to turn research and knowledge into products and services”. The Taoiseach pointed to the enterprise-friendly environment and the availability of high quality employees as aspects of the Irish economy that will complement the new fund.

A large portion of the fund will go towards fostering research.  The government has pledged €250 million towards the Innovation fund, half of which will come from the exchequer and another €125 million will be provided by the National Pension Reserve Fund. The remainder will come from venture capital companies.

The fund will seek expressions of interest in early September 2010.

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NTP, the patent-holding company best known for securing $612.5 million from the manufacturer of the Blackberry after accusing it of infringing patents, has now filed suit against six other smartphone companies- Apple, Google, Microsoft, HTC, Motorola and LG Electronics.
 

The suits, which were filed last week, allege that the mobile phone email systems of these companies incorporate NTP’s technology.

The patents in issue are identical to those that were at issue in the litigation taken against Blackberry maker Research In Motion (RIM), a case that settled in 2006. The settlement included a perpetual licence for RIM to NTP’s technology. Nokia and Good Technology have also licensed NTP’s mobile email patents. The NTP patents expire in 2012.

Patent holding companies often launch patent battles against established industry players even though they have no intention to market their own patented product - hence they have attracted the name "patent trolls".

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The Irish Minister for Health, Mary Harney, has announced plans to bring forward legislation that would introduce reference pricing and permit generic substitution by pharmacists in Ireland.

Currently, when a specific brand of medicine is prescribed for a patient, a pharmacist can only supply that particular brand. The new measures would oblige pharmacists to advise patients if an alternative generic drug is available. In a country where less than one in five prescribed drugs are generic (compared to four in five in the UK), it is estimated that the new legislation would result in savings for the Irish taxpayer of at least €78m.

It is expected that 100 branded products will be covered in the legislation, which is expected to be introduced later this year.

We will update readers on the progress of this legislation. 

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The Article 29 Data Protection Working Party recently published an Opinion clarifying new EU rules concerning the use of cookies and similar devices.

The Working Party considers that prior opt-in mechanisms requiring an affirmative action by website users to indicate their willingness to receive cookies or similar devices would be "more in line" with the requirement to obtain informed consent as required under Article 5(3) of the ePrivacy Directive.  Up until now, website users have typically been notified about cookies by means of privacy statements and online terms and conditions. Due to the “affirmative action” referred to in the Opinion, it would appear that these mechanisms may no longer be sufficient.

The legislation in question (which is the revised ePrivacy Directive) must be transposed by 25 May 2011 and the precise means of notifying website users will depend on the implementation measures adopted by each individual Member State.

Based on the Opinion however it would appear that enhanced notification mechanisms may have to be adopted in the future. 

We will post further updates as they arise.
 

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