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Subject: [Leh-letter] LEH-Letter: Copyright, New Media Law & E-Commerce
News


FROM THE OFFICES OF LESLEY ELLEN HARRIS
Copyright, New Media Law & E-Commerce News
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Vol. 8, No. 2, April 28, 2004
ISSN 1489-954X

Contents:
	
1.      Studies, Legislation and Conventions:
Term Extension in Canada
EU IP Directive on Copyright Enforcement

2.      Legal Cases:
Click-Wrap License Binding
Archives Challenge "Orphaned" Works Copyright Provisions 
Music Sharing Cases Update

3.      Of Interest:
Halting File Sharing in Universities
U.S. Government Fights Online Piracy
Korean Music Industry Disputes MP3 Phone Legality

4.      Seminars and Speaking Engagements:
Canadian and International Copyright Law Online

5.      Publications:
                Print Copyright Newsletter


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Copyright, New Media & E-Commerce News is distributed for free by the
office of
Lesley Ellen Harris. Information contained herein should not be relied
upon or
considered as legal advice. Copyright 2004 Lesley Ellen Harris. This
newsletter
may be forwarded, downloaded or reproduced in whole in any print or
electronic
format for non-commercial purposes provided that its author is
acknowledged and
that you cc: [log in to unmask]

This newsletter is archived with the National Library of Canada at:
http://collection.nlc-bnc.ca/100/202/300/copyright-a/index.html

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__________________________________________________________________

1.      STUDIES, LEGISLATION AND CONVENTIONS:

TERM EXTENSION IN CANADA - Bill C-36 has been reintroduced by the
Canadian
government.  This bill is nicknamed the L.M. Montgomery Copyright Term
Extension Bill because it extends the term of copyright for unpublished
works
of this well-known author of books like Anne of Green Gables.  Her works
entered the public domain on January 1, 2004, but the government has
reintroduced the relevant bill without change.

EU IP DIRECTIVE ON COPYRIGHT ENFORCEMENT - On March 9, 2004, the
European Union
("EU") Intellectual Property Rights Enforcement Directive was passed. 
Originally drafted to deal with professional pirates, criminals and
counterfeiters who make copies of goods such as football shirts or CDs,
the
Directive as passed deals with any infringement of intellectual
property.  It
allows companies to enter homes, seize property and request that courts
freeze
bank accounts to protect intellectual property thought to be abused or
stolen. 
A last minute amendment to the Directive disallows actions against
consumers
who download music "in good faith" for their own use.  Once EU ministers
sign
off on the new rules (probably next week) against counterfeiting, member
states
would then have 18 months to implement their own versions of the
Directive. 


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2.      LEGAL CASES:

CLICK-WRAP LICENSE BINDING - A federal district court in Minnesota
rejected an
argument that click-wrap or clickthrough acceptance of a software
license under
protest did not bind the defendants. The plaintiffs had agreed to
develop
software which the defendants would market and distribute. Early forms
of the
software were issued to the defendants with shrinkwrap licenses; a later
version had a click-wrap license. The court rejected the defendant's
argument
that they did not truly "accept" the license terms but clicked through
only
because they needed the software to upgrade earlier, unsatisfactory
versions.
The court also was not persuaded that the defendants were unaware of the
earlier shrinkwrap licenses so were not bound by them. References to the
licenses in invoices and in the software development agreements gave the
defendants sufficient notice of the licenses. I-Sys Inc. v. Softwares
Inc.,
Civil No. 02-1951 (JRT/FLN), (D. Minn. March 29, 2004).  The decision is
at:  
http://www.nysd.uscourts.gov/courtweb/pdf/D08MNXC/04-02605.PDF.

ARCHIVES CHALLENGE "ORPHANED" WORKS COPYRIGHT PROVISIONS - The Internet
Archive
and the Prelinger Film Archive, which post public domain creative works
on the
Internet, filed a complaint in a California federal court, seeking a
declaration that copyright restrictions on orphaned works in the Berne
Convention Implementation Act ("BCIA") and the Copyright Term Extension
Act
("CTEA") are unconstitutional. Orphaned works are works that are no
longer
available but for which copyright has not expired. The archives claim
that the
BCIA provisions unreasonably burden speech and thus violate the First
Amendment
Free Speech Clause, and that the BCIA and CTEA provisions together
violate the
Progress Clause in the Constitution. The complaint was filed on behalf
of the
archives by the Stanford Center for Internet and Society under the case
name
Kahle v. Ashcroft. The complaint is at:
http://cyberlaw.stanford.edu/archives/Amended%20Civil%20Complaint%203-30
-04.pdf.


MUSIC SHARING CASES UPDATES:
U.S. UPDATE -  The RIAA has sued an additional 532 anonymous
individuals,
including 89 people at 21 separate universities, for online music
sharing.  In
previous cases, more than 400 individuals have settled with the
recording
industry association, paying amounts averaging $3,000US.  For further
information, see:  www.riaa.org. 

CANADIAN UPDATE -  A Federal Court has ruled that Canada's music
industry cannot
force Internet service providers to identify online music sharers.
Without the
names of the individuals, the Canadian music companies cannot proceed
with
their lawsuits against online music sharers.  The judge ruled that the
plaintiff music companies did not provide enough evidence that any
copyright
infringement had occurred or that the companies could identify the
individuals.
 Background information on this case is at:  www.cria.ca. 

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3.      OF INTEREST:

HALTING FILE SHARING IN UNIVERSITIES - The Automated Copyright Notice
System
("ACNS") is new anti-piracy technology designed by Vivendi Universal
Entertainment and Universal Music Group to halt peer-to-peer piracy.
ACNS
permits universities and ISPs to automatically restrict or stop Internet
access
for alleged infringers on notice from a record label or movie studio.
As such,
it would ease the financial and administrative burden on universities
and ISPs
who are currently dealing with thousands of content takedown notices
from
copyright holders.  This piracy notice and prevention tool has yet to be
tested
as a pilot program, however Vivendi and Universal have applied for a
patent on
it.A similar system is set to go live on Monday April 26, 2004 at the
University of California at Los Angeles.

U.S. GOVERNMENT FIGHTS ONLINE PIRACY - The U.S. Department of Justice's
"Operation Fastlink" has investigated a number of international
suspected
online copyright infringers.  The Department has searched 120 potential
cases
in 27 U.S. states and 10 countries.  They have seized 200 computers, 30
of
which were alleged to be servers that store and distribute thousands of
copyright protected works, including newly released movies and music.

KOREAN MUSIC INDUSTRY DISPUTES MP3 PHONE LEGALITY - The Korean
Association of
Phonogram Producers ("KAPP") seeks to block further sales of a new MP3
phone
introduced by LG Electronics, a leading Korean cell phone maker. KAPP
argues
that the phone violates copyright law. LG Electronics responds that the
phone
incorporates Digital Rights Management technologies to prevent
unauthorized
play of music files. KAPP dismisses the effectiveness of any such
protections,
noting that programs designed to circumvent DRM are already available on
the
Internet. Government mediation attempts have been unsuccessful.

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4.      SEMINARS AND SPEAKING ENGAGEMENTS:

CANADIAN AND INTERNATIONAL COPYRIGHT ONLINE SEMINAR - Copyrightlaws.com
is
re-offering its popular online course on Canadian and International
Copyright
Law. Learn from your own home or office at your own pace! The course
will begin
on Monday, May 10, 2004, and will run for eight weeks. For more
information and
to register, visit: http://www.acteva.com/go/copyright. Access Copyright
affiliates should register at: http://www.accesscopyright.ca.

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5.  PUBLICATIONS:

PRINT COPYRIGHT NEWSLETTER-The Copyright & New Media Law Newsletter:
For
Libraries, Archives & Museums is now in its 8th year of publication.
The
newsletter is published in print four times per year, with free email
copyright
alerts between print issues.  The newsletter has subscribers from over
20
countries.  The first issue of 2004 has an editorial on the Supreme
Court of
Canada decision expanding "users' rights" and fair dealing.  To
subscribe to
this newsletter, visit:  http://www.acteva.com/go/handshake or
http://copyrightlaws.com or email:  [log in to unmask]


________________________________________________________________________
____________________________________________________________

This newsletter is prepared by Lesley Ellen Harris, a Copyright and New
Media
Lawyer and Consultant. Lesley is the author of the books Canadian
Copyright Law
(McGrawHill), Digital Property: Currency of the 21st Century
(McGrawHill), and
Licensing Digital Content (ALA Editions).  Lesley may be reached at:  
[log in to unmask] and at:  http://copyrightlaws.com.
________________________________________________________________________
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This LEH-Letter issue was prepared with the help of Kim Nayyer.




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