Intellect or Insanity, Jonathan Klinger's Blog

The ruling in C 48511-07 Dr. Dov Klein v. Proportzia ltd will most probably not be in any future cyberlaw schoolbook unless Google, one of the defendants (or actually three of them), will decide do appeal even though such a small amount (around 12,000 US$) was ruled against it and Proportzia. In brief, before we discuss the problems of this ruling, let’s tell the story. Dr. Dov Klein is a plastic surgeon. One day he found out that Proportzia, a clinic providing cosmetic surgery and other beauty treatments, decided to purchase AdWords under his name. Klein did not like the use of his name and decided to sue Proportzia as well as Google, the service provider. The Magistrate Court of Tel Aviv-Jaffa ruled that Proportzia and Google are liable for invasion of privacy and must compensate Dr. Klein.

Google AdWords lawsuits were a big issue in the past (where the most famous was Government Employees Insurance Co. v. Google, Inc., No. 1:04cv507, see more at Eric Goldman’s blog). In Israel, however, there was one material ruling, OP 506/06 Matim Li v. Crazy Line, where the Israeli District Court of Tel-Aviv ruled that as long as the ad itself is not misleading, there is no problem with purchasing ads using someone’s tradename. But here the court needs to explain why he deviated from this decision, so he ruled that “These are keywords which contain a personal name, and not a trademark, and therefore you cannot say that in regards to this name the internet is an advertising space similar to others. So it would be adequate to rule that in regards that without the personal name’s holder’s permission, the name shall not be used for advertising”

The court goes with the infamous publicity rights and determines that when the use use is of someone’s personal name, and not a trade name, then the use has to be with permission of its “owners“. However, here already stands a first problem in regards to publicity rights. Dr. Klein is a celebrity, and as such he has not right for privacy (in regards to publicity rights). Israeli courts ruled that when a person uses his name for trade, he cannot later state that he does not want others to rely on such business name. In a recent case, the court ruled that “the right for privacy is a right that protects the emotional-personal interest of a person, his autonomy and his private matters, but not his financial interests” (C 534-08 Hava Koren v. Shai Cohen). Meaning, the rationale behind publicity rights apply where a person does not wish to be known publicly and is coerced to do so, not where he is already known.

The second problem here is where is the border between a person’s name and a trade name. Is Ford protected under this ruling, being the surname of Henry Ford? This is the incoherence that later calls of over-litigation and pays the lawyer’s retainer is bad lawsuits. If the court had a reasonable rationale, it had to provide it in a detailed manner, even if it means writing 50 pages instead of 14.

Now, after having said that, the real problem arises. As the court did not provide reasoning for its ruling, it did not explain where Google’s active involvement that provides incurring liability on it. That’s why Google did not know, and was not expected to know, about the existence of a person named Dr. Klein and that he does not want others to use his name. The court here goes against any other service provider liability case in Israe (C 567-08-09 ALIS v. Rotter, C 1559/05 Hemda Gilad v. Netvision, C 64045/04 Al Hashulchan v. Ort).

The fact that the court did not provide reasoning to its ruling is a problem. It does not let us understand why it decided that Google is liable and does not let us understand the issue. We have to wait and see whether Google appeals this.

[Originally in Hebrew]

The recent Australian decision in Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 was more than satisfactory to most of the users and Internet Service Providers. In summary, the Australian Federal Court ruled that an Internet Service Provider is not liable for its users’ copyright infringement as it does not encourage or authorise such downloads. iiNet was sought in court for enabling BitTorrent traffic and not barring its users from sharing files.

While the 200 page decision is more than interesting, one should note that the court had more than a challenge when needed to explain how BitTorrent actually infringes copyright. Copyright law has a requirement that the copying be of a substantial part of the work (s. 14, Australian Copyright Act). Therefore, a BitTorrent client, which provides small chunks of a file does not provide, copy or make available a substantial part, as any of the parts transferred may be irrelevant and insatisfactory in regards to copyright infringement (see more about BitTorrent at Stephen Knox, Diarmaid O’Cearuil, Nicola Scott Holland and Ljiljana Skrba, BitTorrent).

For example, sampling, such as in Girl Talk’s videos may sometimes be considered fair use, at least by the artist and it does not, at most times, sample a substantial part of the original work. BitTorrent, at least here, creates a material challenge to explain how a particular user copies a substantial part, as a user does not actually create a substantial copy. However, the court went on, and explain, in a rather meticulous way, how it sees BitTorrent as creating a copy of a substantial part of the work:

The Court finds that it is the wrong approach to focus on each individual piece of the file transmitted within the swarm as an individual example of an ‘electronic transmission’. The BitTorrent system does not exist outside of the aggregate effect of those transmissions, since a person seeks the whole of the file, not a piece of it. In short, BitTorrent is not the individual transmissions, it is the swarm. (…) The correct approach is to view the swarm as an entity in itself. The ‘electronic transmission’ act occurs between the iiNet user/peer and the swarm, not between each individual peer. One-on-one communications between peers is the technical process by which the data is transferred, but that does not mean that such level of detail is necessarily what the communication right in s 86(c) focuses upon.

Viewing the swarm as a copy of a work is an interesting initiative. It sits side-by-side with the legal problems which cloud computing may face, but the swarm is not an entity, it does not have a right for expression nor does it have an understanding of fair use, it cannot use legal defenses (such as the doctrine of first sale) in creating such copies and cannot be sanctioned monetarily. So who could be sought after?

Theoretically, let’s see a swarm for a popular .torrent, such as a movie: while some users may pirate content (according to a recent dubious study, the some is 99%), we can acknowledge that at least some of the people sharing a file have a good reason to do so. We can assume that at least a small portion actually bought the content and are downloading this copy as it is more comfortable to use on their computer (due to DRM restrictions, let’s say), some are actually selling their legal copy to a friend and using a private p2p .torrent to convey the first sale doctrine (Like Vernor v. Autodesk), some are conveying a copy as a fair use right, to create a derivative work in a research or for personal study of the work, and some are creating a digital archive or researching network behaviour.

Seeking out legal action against a swarm is problematic. You do not have an actual person which infringes, but a computer connected to a network; this computer could have been configured to automatically download content, for example, download automatically any popular movie using The Pirate Bay’s top 100, such download does not contain any human intervention and therefore is not an  act of infringement, as infringement has to be done by a real person.

Now, let’s assume that the person actually views the movie. At least the Israeli and US Copyright Acts do not contain a provision prohibiting use, just copying. So, theoretically, such automated mean may be exempt from copyright infringement for personal use. In this very improbable case, no copyright infringement occurs in the swarm, and the swarm may be a copy, but not a copyright infringement.