Imperfection of Copyright Law and the Notion of Piracy - Research Paper Example

Information technology and legal issues The advent of the internet has resulted in a tremendous increase in the scramble for lucrative domain names. In addition to tremendous competition in names that seem to bear market value and seem easy to remember in the minds of people, registration and resale of domain names has evolved into an individual and lucrative business sector. The goal of most legal systems in this context has been to harmonize all differences between related business practices and existing regulatory initiatives on the part of the government. In the current case where the company Numa Numa solutions, proposes to use the domain name ‘www.sharebox.com’, the opposition from the company that owns ‘www.sharebox.ca’ is due its concern over the issue of type squatting, which has become a regular practice in the online industry. Although government specifies that type squatting is illegal, one if left to wonder whether this practice is just another way of succeeding in a highly competitive market. It remains to be seen whether the law is restrictive in this scenario or reactive to the dynamics of a free-market economy1. The growth of the internet has presented an interesting prospect to the growth of business law. An evolving internet, much of which is driven largely through effective marketing strategies, is fast becoming a platform for business, social issues and legal development. Business usually progresses along levels of uncertainty as long as such restrictions are reasonable and there is a level of predictability and continuity in resolving disputes. The essence of any legal resolution within a business context is to minimize any associated business risk. However, traditional practices of conducting business went well with the usual common legal framework and have allowed the free market economy to thrive. In the case of Internet law, issues related to the use of domain names have become controversial as to the limits and rights of using them as part of a free enterprise market system. Part of this concern stems from the potential of doing business to a global audience through a single medium across countries, cultures and diversity. If involved with a strong and essential business domain, such as in the stock markets, the concern among companies becomes even stronger. Another limitation of Internet Law lies in its limited reach towards the legal boundaries of demarcation as compared to traditional limits2. Further, given the web’s global reach, no single legal system within a nation can control it ultimately. However, companies may be subjected to local lawsuits if their business operation and revenue generation falls within that particular region. A popular example in this regard would be the legal tussle between Microsoft and the European Union over certain provisions of the Windows operating system that were found to hamper a free market system with Europe. According to Forrester Research, online sales of retail products are expected to double in the next 5 years to reach a whopping $320 billion by 2014. Likewise, e-commerce is expected to experience a healthy growth rate of 12% by the end of 2010. Given this huge potential in online business, there is a huge concern amongst existing web-based business over false and misleading acts in commerce. This is particular evident in the case of marketing and advertising over the web where there is rising skepticism over the use of names similar to established brands. In response to related unfair business practices, the United States Congress has enacted laws that restrict such methods on the Internet. The Federal Trade Commission also faces an uphill task in adapting to traditional 20th century commercial law to enforcement of legal and ethical electronic commerce3. The root of the problem lies in the ability to cut and paste a known url on the address bar of a web browser and accessing the website. Although this may seem obsolete these days, new advancements have created troubles for companies. New versions of browsers such as Internet Explorer 8 or Google chrome have the in-built capability to present a list of probable urls at the user continues to type a web address. The concern of the stock company lies in the fact that typing a common name like Sharebox would present the address ending with ‘.com’ over the ‘.ca’. As such, the company stands concerned over this preferential treatment of the .com domain in possession with Numa Numa Solutions. Many a times, users also tend to remember just the domain name and do not note the ending suffix. In this case, any user who returns to access the site would simply type the domain name and enter the more popular .com suffix thereafter. This would not only redirect the traffic to the picture hosting site, but could also lead to potential loss of business for the stock company. Such subtle differences in domain suffixes also constitute typo squatting, which generally relies on typographical mistakes, leading to an alternative and sometimes similar website as the original one. To an unrecognizing user, such similar sites that differ only in such domain names (such as google.com and googel.com) can result in users providing important information such as usernames and passwords to potential cyber squatters. No corner of the web has been free from such malpractices. The issue starts with purchasing a domain name that contains these little differences from existing ones with the belief that any new site will gradually attract traffic from the original site due to any of the situations mentioned above. For instance, typing gamil.com instead of gmail.com is an example of a type squatter site4. Similarly, unless Sharebox was owned by a single corporate entity, typing sharebox.com instead of a country and market specific sharebox.ca would amount to this type squatting. Cyber squatting Based on a loosely driven concept, ‘cyber squatting’ is the concept of using a domain name that belongs to another URL without any legitimate form of approval or without having any license from the original owner. This definition of cyber squatting stems from the case of Toysrus Inc. vs. Eli Abir, 1998, that involved a clear cyber squatting scenario. Controversies pertaining to domain names are relatively new until a few years ago. However, growing business and daily transactions across the Internet have led such laws to evolve into integral components of commercial and business law. The formal definition of Cyber squatting stands as follows: “Cybersquattin is the action of registering and using internet addresses that are popular and represent an established market base, with the intent of selling the same the same to its rightful owner.”5 Typo squatting The above definition of cyber squatting provides a basis for describing typo squatting, which is a finer version of this practice. Typo squatting is the practice of purchasing domain names that resembles a popular domain name and is a variation aimed at attracting net traffic off the original domain due to a misspelling or variation in the web address entered by a user. Although examples would point to www.yahoo.com and www.yahooo.com as classic examples of typo squatting, the current case can be regarded as a clear case of such a phenomenon. In this regard, sharebox.com will be considered as a differently phased domain address and will be interpreted as a typo squatting attempt aimed at playing a spelling game where the user will type the much more accustomed ‘.com’ over the country-specific ‘.ca’. In case of deciding to go ahead with the name sharebox.com, the stock company may claim damages in the form of increased expenditure towards advertising the .ca and informing customers to ignore ‘.com’ when trying to access stock related web resources. Besides, the company could also claim added expenditure in devoting time, money and resources towards redirecting potential customers and increasing their hit rates on popular search engines through requisite search engine optimization techniques6. Studies note that an average internet user makes mistakes on 1 out of 5 occasions in entering a URL. This amounts to more than 100 million incorrect URL entries on a daily basis. The stock company can use such statistics in claiming that Numa Numa solutions is incurring a good income through such mistakes from users, thereby impacting its business. For instance, John Zuccarini, the world’s most popular typosquatter, is known to have generated over $1 million annually by registering over 3000 such typos of well-known domain addresses. Recommendations Based on the above considerations, the proposed decision to use sharebox.com as the domain name for the photo sharing site will be deemed illegal due to the use of a similar domain by an established business. The law determines that this can be challenged in two ways using the UDRP (Uniform domain name resolution policy) and through legal arbitration by invoking the ACPA (Anti-cyber squatting Consumer Protection Act). Through the UDRP, Numa Numa solutions will have the possibility to obtain legal permission from the administrative body, which determines whether the intended domain can be used or needs to be canceled. The UDRP will exaimine whether sharebox.com is identical or similar to the name sharebox.ca or the trademark ‘Sharebox’ in general. Obtaining a recommendation from the UDRP would provide Numa Numa solutions the much needed governmental clarity over whether it should proceed or withhold in going ahead with the proposed domain name. However, the ruling of the UDRP is not binding on the courts and can be challenged by the stock company. Consider the case of J. K. Rowling (the complainant), the author of the popular children’s book – ‘Harry Potter’, vs. Alvaro Collazo. The case involved a dispute over the use of www.jkrowling.com belonging to the complainant and www.kjkrowling.com and www-jkrowling.com, belonging to the latter. In fact, users mistakenly entering these two domain URLs, owned by Mr. Collazo, were being bombarded with pop-up ads7. During court proceedings, Mr.Collazo, despite being the legal owner of these two URLs, was confirmed by the hearing committee of having profited from Ms. Rowling’s fame through the ownership such similar domain names. The court ruled that Mr. Callazo had taken advantage of the similarity between these domain addresses and the confusion in the similarity of the trademark. The disputed websites were declared as having been used in bad faith and were transferred to Ms. Rowling through a court ruling. Numa Numa solutions may face a similar situation if it chooses to proceed with the proposed domain names without prior regulatory opinion. This is also highly recommended as the court usually offers several alternatives to parties who have undergone the arbitration process at the UDRP. In the short run, the stock company may secure a restraining order that can prevent users from accessing their photos. The company may further succeed in obtaining an injunction and file for damages. As an alternative, Numa Numa solutions can consider an alternate domain name that is distinct and devoid of any potential lawsuits against alleged use of existing trademarks. This can be a good alternative as the company is yet to launch the website and hopes to derive revenue to related market advertising. Choosing this alternative is further beneficial as it would allow the company to avoid incurring the ACPA (Anti-Cyber squatting Consumer Protection Act), which though a longer process, has the potential to result in expensive legal battles in addition to involving a time consuming process. Companies that hold trademarks can claim dilution under the FTDA (Federal Trademark Dilution Act)8. Again, the ensuing legal process is time-consuming and expensive. If Numa Numa Solutions still prefers to use the domain name ‘www.sharebox.com’, it could choose to approach the courts and petition in favor of the intended domain name as a distinctive trademark. To achieve this, Numa Numa Solutions can cite the distinct business areas of the two companies (Photo sharing / Social networking against stock trading). Secondly, the local nature of shareox.ca as catering to the Canadian markets alone can be used to further favorable arguments. The company can also make use of the difference in revenue models between the two companies in this regard. Further, it is recommended that the company initiate a policy whereby users of the photo website will not be able to download any of the content unless authorized by the content’s publisher. This can be achieved by providing access controls for every photo and album. In such a framework, the publisher could have the choice of selecting individuals who will have the right to download content, whereby this group of approved users could include specific contacts of the publisher (who are themselves registered on the site) or registered groups of users such as friends and family members. It should be made mandatory that all such users would be registered members of the website9. Finally, the internet industry has been facing a lot of issues with regards to privacy of information during online transactions. Apart from the common threats of phishing and data interception, issues such as gaining access to private information of users are also a matter of concern. It is therefore recommended that the company utilize the services of providers or develop components in-house that will encompass all necessary precautions to ward of any interception of internet traffic10. This will not only reduce the vulnerability of the company’s resources to unauthorized access, but will also enhance the confidence of users when publishing their content and using the company’s resources for storing their material. WIPO Copyright Treaty 1996 The WIPO (World Intellectual Property Organization) Copyright Treaty is a copyright law and an international treaty enacted in 1996 across its member states that facilitates protection of copyrights deemed essential to keep in pace with developments in Information Technology. The treaty has undergone several criticisms ranging from an allegation that the treaty went overboard in prohibiting several measures regarded as alternatives over technical protection, even when such measures were considered to be in pursuit of fair use11. Further, the WIPO Copyright Act has also been labeled as a ‘One size fits all’ agreement, that makes no distinction on the basis of the level of the knowledge industry or the difference in pace of economic development among member countries. Several laws have been constitutes on the basis of the WIPO Copyright that resulted in the DMCA (Digital Millenium Copyright Act) in 1998 under US law. Currently, The WIPO Copyright is administered in two parts namely, Section 102 that implements the WIPO Treaty and Section 103 that prevents any circumvention described previously. Amongst these, the section that favors prevention of any potential circumvention has faced the most controversy as it restricts the manufacturing and distribution of devices that circumvent any such copyright protection12. In addition to preventing any alternative that can overcome access to a piece of work, it is strongly prohibited to manufacture or import any device or provide any service that can provide such circumvention that spoils effective controls over access to an intellectual property. Moreover, such prohibitions extend to the owner of the copyright and any marketing initiatives that influence the related product or service. For instance, it was forbidden to sell VHS video recorders that could affect the copy protection of automatic gain control technology. The WIPO Copyright separates the control of access from copy control procedures. An access control mechanism limits the access to the content of any protected work through a requisite mechanism such as encryption or relevant access rights. On the other hand, a copy control mechanism only prevents a user from copying another’s work and may still be able to access the intellectual entity13. Although the copyright law prevents any circumvention that violates either types of copy protection, only the practice of circumventing any access control mechanism is considered to be illegal. Overcoming a copy control process is not discouraged, although such copies may still be examined under copyright law. WIPO copyright has faced further criticism as it is perceived as restricting its reach. The act does not affect the rights, limitations or solutions to any case of copyright infringement, which includes fair use practices. Further, there is no specific requirement that components or technologies be designed specifically so as to conform to copy protection mechanisms14. The act does not influence any rights of freedom of press or speech in using or popularizing consumer electronics or digital products. Another glaring outcome of the act is its approval for circumventing any law enforcement or government activities aimed at gathering intelligence. Commercial software organizations such as Microsoft and Sun Microsystems have expressed disappointment that the WIPO copyright does not prevent reverse engineering done with the motive of achieving interoperability amongst diverse software programs. In addition to providing users the legal right to override any personal protection mechanisms by disabling releveant systems, the copyright has also allowed the reverse engineering of encryption techniques, providing a way for potential hackers to circumvent the provisions of the legal system against illegal access of computers and networks. Companies have also expressed dissatisfaction at allowing the possibility of users to test software systems for vulnerabilities in security, thus subjecting corporate networks to unnecessary risk. The statute also requires a ‘primary intent’, which presents major hurdles to those who seek to prove the occurrence of a violation. For proving any such violation, it is necessary to demonstrate that the alleged person had the primary motive of circumventing the copyright protection in place. However, in the presence of a provision that allows scenarios such as achieving interoperability amongst software systems, such allegations do not stand ground and such circumvention is legally permitted. From an overall perspective, it has been largely difficult to judge whether the WIPO Copyright act empowers or limits copyright enforcement. As it does not influence the underlying protection of copyrights in any way, the act is often regarded as a mere alternative for procedures and penalties that can be enforced. Going by the above discussions, as this law provides numerous safe havens for different scenarios in security, circumvention, parental controls, research and reverse engineering, the WIPO Copyright Act has in many ways restricted the applicability of relevant enforcement15. The enforcement of the WIPO copyright has not been far reaching as hoped by its creators, wherein instances abound where the law has been used for unfair leverage. To protect DVDs from unscrupulous use, they are often encrypted using CSS (Content Scrambling System). Jon Johansen, who wrote a decryption program (DeCSS) to be able to watch the DVDs under Linux was tried and acquitted for violating the copyright. The courts ruled that Mr. Jon had done so in line with interoperability. The software has been available widely since then. Mr. Alex Halderman, a student at Princeton University, was charged by SunnComm on the basis of the WIPO copyright of having violated the CD copy protection mechanism of its Mediamax CD player. However, Mr. Halderman was clever to explain to the press that such copy protection could in fact be trespassed by simply holding the shift key down when inserting the CD. Amidst an embarrassing public glare, the company withdrew its petition16. In conclusion, the WIPO copyright act has faced increasing criticism from different corners of the digital industry, especially from Open source developers, who argue that the act does little to prevent copyright infringement although the act continues to be supported by prominent industry associations such as RIAA. The law in effect has allowed open source companies and proponents of interoperability to develop software routines that can bypass legacy systems such as Windows, thereby rendering the efforts of commercial players like Microsoft useless amidst huge costs involved in developing such copy protection techniques. DMCA (Digital Millennium Copyright Act) Since being enacted in 1998, the DMCA (Digital Millennium Copyright Act), which incorporates the WIPO Copyright Act as a separate section, was aimed at preventing circumvention. Codified under the section 1201 within the Copyright Act, the DMCA has not been used as originally envisioned. The purpose of enacting the DMCA was meant to prevent infringement of copyrights and to stop piracy of copyrighted products in addition to enforcing a ban on ‘black-box’ devices used for such purposes17. In reality, the provisions of the DMCA have been utilized to stifle a number of legitimate procedures and have been unable to prevent copyright infringement. As such, DMCA has evolved over the period into a contentious issue for several public policy frameworks. The section 1201 of the DMCA has been exploited for curbing freedom of speech and scientific endeavors. For instance, the case involving 2600 magazine, the issue of threats to Mr. Edward Felten, a professor at Princeton University and the arrest of Dmitry Sklyarov, a Russian programmer, are cases where there have been attempts to restrict the legitimate activities of scientists, programmers, journalists and activists18. By declaring all activities of circumvention as illegal, the DMCA has in effect given power to owners of copyrights the unassuming power to control the public’s rights on fair use of tools and technologies. For instance, the restriction on the free usage of DVDs by the entertainment industry through techniques such as encryption has discouraged customers from purchasing personal copies of movies or other content that is legitimate. The introduction of the DMCA has further led to a restriction on innovation and has dampened competition in the market. Instead of focusing its attention on piracy, the DMCA has allowed man companies to use copyrights as pretexts for restricting the growth of their competitors. This can be witnessed in the case of the toner cartridges market for laser printers or computer maintenance. This was in fact the manner in which Apple used the DMCA to prevent RealNetworks from selling music to iPod users19. Computer intrusion has been one of the biggest areas of concern for law enforcement agencies in the fight against unauthorized intrusions and hacking of computer systems and networks. The DMCA has in fact interfered with the existing legal framework for computer intrusion through the provision of a general restriction of accessing computer networks. Without any financial perspective attached, the DMCA has allowed employees to use computer networks against their organization’s interests for malicious purposes. Improving the DMCA At the helm of the DMCA lies the issue of fair use. Although Copyright Law specifies that the public has the right to use copyrighted works without prior permission, its definition of the ways in which such uses must not interfere with the rights of the copyrights’ owner are not beneficial to the society. Industry players have long used the keyword of ‘piracy’ to introduce protection measures that not only control the amount of access to copyrighted works, but also use the provisions of the act to implicate anyone who violates such measures. Copyright owners can thus eliminate the notion of fair use if the present trend is allowed to continue. The legislation can be improved in numerous ways to implement the required alternatives. The government needs to understand that in the current market where being digital has got nothing to do with the content being present on a physical location, the notion of copy protection on CDs does not hold ground as a fair practice. Today, millions of people use iPods and digital devices to share music and other online content. While sharing MP3 music qualifies under fair practices, the government needs to rethink its approach on allowing users to play with their content in a way theu desire. Making copies of CDs for purposes ranging from use in the car to the workplace are examples where the law needs to consider a revamp. Further, the restriction on using tools to repair malfunctioning CDs is another area that requires a revisit as current provisions of the DMCA prohibit such programs by placing them under circumvention tools20. With the increase in use of word processing software, the exchange of literary content in the form of e-books has assumed a massive significance. In the case of Elcomsoft, the provision of a tool that could convert books from the Adobe reader format to a PDF was found to do away with many of the restrictions that publishers could place on the copying and editing of content21. The law in this case did not take note of the fact that the same tool, known as the advanced e-book processor, could allow legitimate editions to be used in through fair means, which was otherwise impossible through Adobe’s e-book format. The law needs to consider the possible scenarios of allowing people to download and read e-books on multiple computers and e-book readers through unrestricted sharing of content. Any downloaded content should not have an expiry date limiting the period of its access. It should further be allowed to reproduce all electronic content in paper form. This also brings to light the issue of interoperability whereby users should not face any hurdles in being able to open e-books on Linux based systems (The Adobe format allows content to be accessed only on Windows based PCs and Apple Macs). Further, extending fair use practices would mean that any such information must be accessible to third-party programs such as text-to-speech programs, which will benefit visually impaired people, helping extend the extent of reach for the books and publishers in general22. The above are some of the recommendations which can be incorporated into existing copyright laws to rid them of the discrepancies that have allowed copyright owners to take undue advantages of such provisions, thus helping deliver digital content through real and fair practices. References 1. Mireille Eechoud, Choice of law in copyright and related rights: alternatives to the Lex Protectionis (Kluwer Law International, New York). 2. William Cornish, Intellectual property in the new millennium: essays in honour of William R. Cornish (Cambridge University Press, 2004). 3. Gabriel Perle, Perle and Williams on publishing law (Vol 2 Aspen Publishers, London). 4. Aaron Schwabach, Internet and the law: technology, society, and compromises (ABC-CLIO, 2006). 5. Paul Goldstein, International copyright: principles, law, and practice (Oxford University Press, 2001). 6. Michael Ryan, Knowledge diplomacy: global competition and the politics of intellectual property (Brookings Institution Press, 1998). 7. Irini Stamatoudi, Copyright and multimedia products: a comparative analysis (Cambridge University Press, 2002). 8. Bruce Girard, Global media governance: a beginner's guide (Rowman & Littlefield, 2002 London). 9. Jurgen Basedow, Legal aspects of globalization: conflict of laws, Internet, capital markets and insolvency in a global economy (Kluwer Law International, 2000 New York). 10. George Cho, Geographic information science: mastering the legal issues (John Wiley & Sons, 2005 Beijing). 11. Curtis Cook, Patents, profits & power: how intellectual property rules the global economy Kogan Page Series (Kogan Page Publishers, 2004 Manchester). 12. Richard Haynes, Media rights and intellectual property (Edinburgh University Press, 2005) 13. Giuseppe Mazziotti, EU digital copyright law and the end-user (Springer, 2008 London). 14. Julie Cohen, Copyright in a global information economy (University of Michigan, 2002). 15. Richard Raysman, Intellectual property licensing: forms and analysis (Law Journal Press, 1999 Bristol). 16. Marcus Franda, Governing the Internet: the emergence of an international regime (Lynne Rienner, 2001 New York). 17. Laura Stapleton, E-copyright law handbook (Aspen Publishers, 2002 London). 18. Craig Joyce, Copyright law: 2003 cumulative supplement (LexisNexis, 2003 Birmingham). Read More