Newzbin2: Mandatory Web Blocking for All ISPs?

Posted on August 17, 2011 by John Cahir

The recent UK High Court decision given in the Twentieth Century Fox v BT case could have significant implications for Irish Internet Service Providers (ISPs). In this case, Mr Justice Arnold ordered BT to block access to the Newzbin2 website, a website that provides users with links to unlawful material. It is considered by many to be a landmark decision as it is the first time that an ISP has been subjected to this mandatory blocking.

What made this case particularly interesting is that BT had already implemented a blocking system, called Cleanfeed, to block access to child abuse images. In this case, Mr Justice Arnold ordered that BT use that same technology to block access to Newzbin2.

Mr Justice Arnold ruled that in his judgment “it follows that BT has actual knowledge of other persons using its services to infringe copyright: it follows that the users and operators of Newzbin2 infringe copyright on a large scale, and in particular infringe the copyrights of the Studios in large numbers of their films and television programmes.” This decision sets a clear precedent for copyright owners and ISPs alike with respect to the availability of “website blocking” injunctions.

In Ireland, the Irish Department of Enterprise, Trade and Employment recently announced its proposal to amend the Copyright and Related Rights Act 2000. The proposed amendment is sought in response to Mr Justice Charleton’s judgment in the EMI v UPC case. The draft European Communities (Copyright and Related Rights ) Regulations 2011 provide that owners of copyright may apply for an injunction against ISPs in order to prevent third parties from using its services to infringe copyright. If adopted, this new provision will potentially open the door to “website blocking” injunctions in Ireland.

Tags: , , ,

Lightning Strikes the Clouds

Posted on August 9, 2011 by Mark Rasdale

The recent reports of a lightning strike at Dublin data centres illustrates the importance of giving close consideration to the contractual consequences of such unplanned events. This is particularly so where the cloud platforms are essential to run business critical activity such as sales or finance and accounting functions.
 
With cloud services, customers first need to decide what business critical activity can be 'cloud dependent' bearing in mind the risks. They then need to consider the extent to which they mitigate the risk of a single point of failure at the supplier end by keeping some disaster recovery and back-up in house. Arguably the more they keep in-house, the less financial benefits they will get from cloud services. In some cases though, it will be a price worth paying.
 
When lightning strikes, two key issues arise:
 
(a) business continuity - what is the supplier obliged to do to avoid business interruption to the customer? and
 
(b) data risk - if systems are down, can data be lost forever or simply rendered unavailable but always restorable and how is related liability and financial risk shared between supplier and customer?
 
To offer real benefits, the contract should have sufficient remedies, built into the agreed price, which mean that termination, supplier switching and in the worst case, threats of legal claims (all of which can involve major business interruption) are options of the very last resort. One example is service credits. But be alert to the steps required in order to qualify for credits and whether credits are in effect the only financial remedy. Another is a clear obligation to implement a disaster plan and data retrieval services, including in particular for force majeure events. But be alert to confirming that these are in scope and their associated cost.
 
Contract discussions should analyse exactly how the service will operate and work through the practical consequences of unforeseen events such as a lightning strike.
Often the obligation to meet a particular service level (and liability to pay credits) will not apply where the unavailability is caused due to force majeure events such as lightning strikes. But query whether the contract effectively suspends any obligation to provide any service, including disaster related service.
 
Many buildings (even domestic dwellings) are designed to include lightning protection systems. Asking a cloud provider if it has such physical protections in place is good due diligence.
 
On the face of it, a force majeure clause ensures a party is not liable for its resulting failure to perform the contract. With business critical IT contracts, that is where the discussion should start, not finish.
 
 
Tags: , , , , , , ,

Monitoring online newspapers: who needs a licence?

Posted on August 8, 2011 by John Whelan

Anyone who clicks on a link and reads an article on an aggregator or media monitoring website in a commercial setting may infringe copyright unless licensed by the publisher, according to a UK Court of Appeal Judgement dated 27 July 2011 in the NLA v PRCA/ Meltwater case.

In 2009, the Newspaper Licensing Agency (NLA), representing most UK newspapers, introduced a compulsory licensing regime for aggregators and media monitoring firms that use content from its members’ websites (newspapers).

Meltwater, a company providing online media monitoring services, agreed to purchase a licence for itself as a monitoring company under this new regime, but did not agree that its customers (PR Agencies) should have a licence too in order to use Meltwater’s services.

The Meltwater News Service consists of Meltwater sending its customers reports of articles, which include the headline of the article, the opening words of the article and an extract showing the context in which the chosen search term appears.

The Court of Appeal was asked to decide if members of the Public Relations Consultants Association (“PRCA”), a professional body that represents UK PR consultancies, in-house communications teams and PR freelancers, require a web end-user copyright licence in order to lawfully receive and/or use online media monitoring services from Meltwater.

The Court of Appeal ruled that the members of the PRCA, receiving these reports, need a copyright licence to ensure that they are not infringing copyright. The Court ruled that headlines are capable of being original literary works and that extracts containing opening words can be a substantial part of an original literary work. Moreover, the Court ruled that the technological process of displaying a webpage on a computer is not a “temporary copy” exempt from copyright.

This decision is likely to have an impact on all websites that provide a news aggregator or media monitoring service and could necessitate major changes in the business models of these websites.
 

Tags: , , , ,