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CDs and copying

Faced with a barrage of imports of bootleg CDs of music, video and games, industry giants and copyright owners are fighting back by embedding anti-copying technology into CDs they produce.

Please note the Law may have changed since the publication of article.

A  Michael Jackson CD wass reported to be the first CD that won’t play on a PC CD-Rom, meaning that it can’t be converted into MP3. The software on the CD causes an error message to appear when it is inserted into a PC. The software does not prevent the CD being played on a stereo system CD or individual CD player.

Since Napster, the music industry in particular has been very nervous about the ability of computer users to copy tracks without paying a royalty and has been pressing for technology to prevent this happening. Governments too have been reviewing the sometimes arcane copyright laws in light of the explosion of PC and internet use.

In 1998, the US passed the Digital Millennium Copyright Act making it an offence to circumvent anti-copying devices. Recently this has been taken to include a programme written by a Russian programmer called Dimitri Skylarov which circumvented embedded anti-copying software in electronic books. Mr Skylarov was arrested after attending a ‘hackers’ convention in Las Vegas despite the fact that he had not broken copyright law in Russia where he lives and works.

The European Copyright Directive will become law within the next 2 years. The Directive will harmonise authors’ rights across Europe giving author’s and copyright owners wider exclusive rights to authorise or prohibit any form of distribution to the public and including a prohibition on electronic copies being made other than for technical (i.e. caching) purposes. The Directive itself talks about the “need to provide protection against circumvention” of copying. It imposes on member states the obligation to legislate against “the circumvention of any effective technological measures” i.e. to outlaw programmes which would overcome the type of software embedded on Michael Jackson’s new CD.

No-one is suggesting that copyright owners should not be entitled to reward for their efforts, or that pirating CDs is acceptable. What must be considered however is whether it should be the copying and circumvention technologies that are outlawed or merely the individual acts of copying.

The concern voiced by those on the other side to the record industry is that the technology unduly restricts the interests of music lovers and merely maximises industry profits by procuring that the tracks can only be enjoyed by those in physical possession of a particular copy, or enjoyed for a limited number of times, or in a particular region.

The Campaign For Digital Rights (“CDR”) protested on Saturday against the use of this technology and anti-copying legislation in the USA and Europe. CDR protesters leafleted shoppers in seven UK cities, raising awareness about the software and the legislation. Whether the actions of CDR and other organisations with similar interests across Europe and the US will lead to a change in the legislation is questionable, particularly in the current climate where greater regulatory measures are being hailed as the answer to all troubles from ministerial leaks to cyber-terrorism and hacktivism.

The days of a simple copyright statement on a record/tape or CD sleeve are gone. It may also mean the days of the Simon Bates announcement on a video tape extolling viewers to only rent videos with a holographic logo are numbered. The industry has the technology to prevent copying and with the help of legislation, it has every intention of using it.

© This article is copyright Simon Halberstam 2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.

High cost of email – Even lawyers are'nt immune

Please note the Law may have changed since the publication of article.

A 32 year old black secretary who until recently worked for City law firm Charles Russell is bringing a claim against the firm for sex and race discrimination on account of an email she unwittingly saw after she handed in her notice. The e-mail, sent by one of the partners to another, suggested that perhaps now they could get “a busty blond” who might still not be any good at the job but at least would be nice to look at. She was naturally very upset by this and according to her doctor is now too ill to work.

Because her claim is for sex and race discrimination there is no cap on the level of compensation she could be awarded. This case should therefore serve as a sharp warning to all employers as to the dangers of e-mail in the workplace, which is a permanent written record and so potentially more dangerous than a verbal communication, which might later be qualified, denied or withdrawn. Even though the offending missive was sent by an employee of the firm, it will be the firm itself which has to pick up the tab because it is vicariously liable for the acts of its employees.

What many employers will want to know is how they can best protect themselves against such proceedings being brought against them. After all, these days e-mail is such a common form of communication that many people use it in the same way as they would the telephone or even instead of face to face conversation. Companies need clear and unequivocal e-mail policies which are properly enforced. These policies need to cover a wide range of areas and to be carefully drafted to protect the employer against commercial, legal and technical exposure. The commercial risks include embarrassment amongst clients or customers if compromising emails are publicised. Legal consequences include damages due for defamation of third parties or damages for discrimination as in this case. Finally, technical exposure may result in various ways, perhaps the most common of which is employees unwittingly opening virus-infected emails. The email policy must not only cover all of these areas but also be properly implemented by the company so as to be enforceable.

Simon Halberstam has formulated email and internet use polices and has created a standard one for client use. The policy can also be tailored to the needs of individual employers. So long as the policies are rigorously enforced, then employers should be able to rest assured that they have done all that they can to avoid expensive and embarrassingly public claims of this sort being brought against them.

© This article is copyright Simon Halberstam 2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.

US law to protect cyberspace against terrorism

Please note the Law may have changed since the publication of article.

On 12th October 2001, the US Senate passed a law, which gives US law enforcement authorities broader powers to monitor Internet use and emails and to conduct wiretaps.

The FBI’s “Carnivore” computer system already searches ISPs records to find specific e-mails and track all visitors to a particular websites, but these new measures are more far reaching and will allow surveillance without the authorities having to prove to a judge any link with the “probable cause” of a crime such where activities could be construed as “federal terrorism offences.”

In the UK, the Terrorism Act 2000 already makes it a terrorist offence to use or threaten action designed, amongst other things, to seriously interfere with or seriously disrupt an electronic system. Simon Halberstam, a partner in City solicitors Sprecher Grier Halberstam said “Because the UK already has considerable anti-terrorist measures in place it seems unlikely that we will be changing the law imminently. The fact that other governments are already taking steps to ensure national laws address cyber-terrorism means that they recognise the seriousness of the threat.” She added “we all need to be aware that viruses and hacking pose serious threats to our everyday lives given the reliance we place on computers. These activities are not just the province of geeks looking for a quick thrill.”

Since the attack on America, ISPs in Britain have been asked to preserve data records from 11September and the days leading up to the attacks and the English authorities are seeking logs of emails sent and received. They have not requested the actual text yet, The Data Protection Act would ordinarily prevent ISPs from retaining this sort of data but the national security exceptions have been invoked to permit retention. Ordinarily such apparent violations of privacy would lead to vociferous outbursts by civil liberties organisations, but this is not something that many such organisations seem to have picked up on yet. The problem with these records is they may identify the computer the email was sent from but won’t necessarily enable the location of the computer or the sender to be established.

Simon Halberstam added that “a further problem with any such legislation which relates to information gathering is that it is only as good as the humans who interpret the information. This could mean that activities which appear to relate to a terrorist attack, such as hacking into a military intranet or large telecommunications system could turn out to be a low-tech juvenile hack or conversely apparent pranks could be connected with a terrorist attack.” Only time will tell whether the legislation the US proposes and national governments have enacted turns out to be effective in the war on cyber-terrorism.

© This article is copyright Simon Halberstam 2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.

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