Glad to see this come to fruition. The Terms of Service team at WordPress.com have made our DMCA process public, to help others struggling with how to deal with the ubiquitous copyright law takedown process.
Category: Law
Legally minded discussions
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Groupon: Trademark Bullies
Groupon: The wealthy business empire that has made its fortune from selling weekend trips and products like the ‘Purple Tickler Dildo’ directly to your e-mail inbox.
They’ve had their troubles in the past, with people apparently no longer feeling the magic of the often bizarre choices made by the virtual coupon giant.
One of the fine products on offer through Groupon However, today saw them coming under fire again. This time for not playing nicely with trademarks.
In a posting on their website, the open source software Foundation GNOME has issued a cry for financial help to oppose a list of trademark registrations that Groupon have filed with the US Patent and Trademark Office, which conflict with those that the Foundation have held since 2006.
It appears that Groupon wish to use these trademarks for the name of a new product that will be used as part of an electronic point of sale application. The scope of the usage described is pretty wide:
Providing use of cloud-based non-downloadable software for processing point of sale transactions, payment transactions, voucher redemption, appointment scheduling, customer relationship management, customer location detection and awareness, inventory management, analyzing merchant transactions, and for evaluating and managing information on business performance and customers; providing temporary use of non-downloadable software that enables users to send and receive pricing, financial transaction, customer information, and payment processing information directly to and from a mobile device and a cloud-based server; software as a service (SAAS) services featuring software that enables users to send and receive pricing, financial transaction, customer information, and payment processing information directly to and from a mobile device and a cloud-based server; providing use of cloud-based non-downloadable software for payment services, merchant analytics, and for evaluating and managing information on business performance and customers; technical support services, namely, troubleshooting in the nature of diagnosing computer hardware problems and troubleshooting of computer software problems; installation and maintenance services for computer software for processing point of sale transactions, payment transactions, voucher redemption, appointment scheduling, customer relationship management, customer location detection and awareness, inventory management, analyzing merchant transactions, and for evaluating and managing information on business performance and customers
(source)
As you can see, that’s pretty similar to the description of activities covered in the trademark held by the Foundation:
Downloadable computer software tools and libraries used for the development of other software applications; downloadable computer software development tools; downloadable computer software for creating and managing a computer desktop; downloadable computer software for use as a graphical user interface; downloadable computer software for word processing, database management, and use as a spreadsheet
The Internet were none too pleased about this, especially as Groupon has waxed lyrical about their admiration of open source software in the past. In an attempt to calm the waters, they gave the following statement:
Groupon is a strong and consistent supporter of the open source community, and our developers are active contributors to a number of open source projects. We’ve been communicating with the Foundation for months to try to come to a mutually satisfactory resolution, including alternative branding options, and we’re happy to continue those conversations. Our relationship with the open source community is more important to us than a product name. And if we can’t come up with a mutually acceptable solution, we’ll be glad to look for another name.
(source)
(second source with slightly different wording on Groupon’s Engineering blog)On the face of it, this largely looks like it might have had the desired effect, with people considering the matter to be closed. However, it seems like nothing better than PR spin. Here’s why:
- It is inconceivable that Groupon would not know about the prior existence of the GNOME Foundation’s trademark. If they didn’t, it should have come up in the course of proper due diligence.
- Applying for identical trademark registrations in such a similar area is an aggressive move
- If Groupon really was in talks with the Foundation, why did they go ahead and submit trademark applications anyway?
- If the recent statement from Groupon really was serious, they should have announced an intention to retract the pending applications
Open source communities do not have the same resources to defend their intellectual property as large businesses do, which can make them seem like an easy target for organisations who wish to trade off of their established goodwill. Any defensive legal action would be hugely costly to pursue, and if the GNOME Foundation are forced to go down that route it will be a loss to the open source community as a whole. Thousands of Dollars that could be spent on further development and innovation will be used up fighting a needless battle with a company that can afford it.
Groupon should stand by its words, respect the GNOME Foundation’s intellectual property rights, and withdraw their outstanding applications. Otherwise they will be confirmed as nothing more than trademark bullies.
Update: Groupon have just posted the following statement:
UPDATE: After additional conversations with the open source community and the Gnome Foundation, we have decided to abandon our pending trademark applications for “Gnome.” We will choose a new name for our product going forward.
Those were some pretty quick ‘additional conversations’.
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Why I’ve Switched to WordPress.com
The eagle-eyed amongst you may have noticed that not only have I switched the blog’s theme in the past few days, but I’ve also shifted the hosting completely over from a self-hosted WordPress.org instance, to one on the servers of WordPress.com. (Confused? This article will explain the difference.)
For years I’ve always run sites using WordPress software that I’ve configured myself, rather than those on WordPress.com, based on the following reasons:
- Hacker Mentality – Not wanting to let go of complete control of my site, and the ability to do with it what I please (like hosting weird web apps and playing about with plugins)
- Cost – I was always under the impression it would be relatively expensive to keep all of my stuff on WordPress.com’s servers, as generous pals have hosted my sites previously
- Transition Pain – Moving from an already established and customised site to a different platform seemed like a faff, with inevitable SEO problems/broken links
- Features and Customisation – Not believing that I’d be able to get my blog to look/feel the way I wanted it to within the WordPress.com boundaries, and that I would miss features (like permalink restructuring)
The more I thought about it, the more I realised that I didn’t actually need to run a self-hosted site for http://iamsteve.in. The design of the site was pretty straightforward, there was no real complicated customisations involved, and the cost of shifting to WordPress.com wasn’t what I thought it might work out at; definitely not for a site that isn’t hosting large numbers of images anyway.
In fact, the benefits of being hosted on WordPress.com seemed more and more appealing:
- A dedicated, and passionate support team that are on hand to help out with any issues (Working alongside them, this was an even bigger boon for me personally)
- A streamlined interface that I use everyday (for both work and pleasure)
- No more having to login to separate admin panels all the time
- A site that is integrated into the highly active WordPress.com community – and so more engagement with other users on the posts
- No more worrying about rogue plugins crashing or needing to be re-configured after an update breaks something
- The ability to take massive spikes of bandwidth, as I’m hosted on WordPress.com’s massive network
and one of the most important things of all:
- The knowledge that my host won’t be intimidated by any legal pressures that come from any of the critical posts I write. (See here for more)
I’m incredibly proud to be part of a team that fights back against those who attempt to censor bits of the Internet that they don’t like on a daily basis, and it makes sense to bring my own writing into that fold. I know I have good people on my side should anything hairy come up.
Really the only thing that I was left swithering over was the pain of moving across. I thought I would give it a bash, and two hours later, the entire site is completely migrated over (multiple domain names and all). The difficulties I thought I’d run into didn’t even crop up as issues at all. All of my custom permalinks are smartly resolved by the WordPress software to their new locations (which I am both almost in disbelief and awe at).
I’m pleased. Not a bad experiment after all.
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The End of Poll Tax – and Scottish Labour
It’s been tough to keep up with the developments in the past week, and even tougher to get time to sit and write about them. It’s as if politicians who advocated for a No vote in the independence referendum have seen things not only as a relief, but an active endorsement to pursue even further controversial measures. Hopefully time will prove this to be a mistake on their part.
Labour Councils to Pursue Poll Tax Debts
Firstly, we watched with incredulity as Labour-led councils announced that they would be using the increase in voter registrations prior to the independence referendum to check for those who may owe money from a refusal to pay the unfair Community Charge (aka poll tax) that was levied by the Conservative Thatcher government over 20+ years ago. (#) (#)
It’s almost unbelievable that this was even floated in Scotland, let alone accepted by the Labour party, who have repeatedly used the issue as a reminder of unjust governance. The strength of feeling about this particular issue is one of the reasons why the Tories have been effectively wiped out in terms of Scottish votes ever since. (To be clear, Conservative council leaders in Aberdeen were some of the first that floated this particular idea, but to accuse them of idiocy seems like a moot point. The hypocrisy of Labour is what is particularly galling.)
Poll Tax Limitation, and Writing Off Debt
Thankfully, the outgoing First Minister Alex Salmond announced that legislation would be brought forward to prevent this from happening:
I’ve seen references online from those who seem to think that this was unnecessary, as councils would be unable to pursue debts of this age under Scots law anyway – something that isn’t strictly true. Whilst Salmond’s assertion that it would be illegal for councils to start new proceedings against people they have never previously had interactions with (as evidenced in this devastating exchange with the Aberdeen Tory Councillor) is correct, the Prescription and Limitation (Scotland) Act 1973 allows for a significant length of time past the original 20 years to collect poll tax owed. This is dependant on a variety of factors – including whether or not the obligation itself has been acknowledged. (s.7(1)(a)-(b)) In other words, the period of prescription is not fixed, and it is therefore possible that councils could manage to claw back some income in certain limited situations. Whilst important to note the slim chance involved (and hence the need to legislate), the likelihood of any income being generated from this route seems to be mostly fantasy.
‘Tax Dodgers’ Charter’
Others have decried this move as a ‘tax dodgers’ charter’, seeing it as a potential loss of hundreds of millions of pounds to local councils at a time when budgets are increasingly being squeezed.
This is ludicrous.
The money in question should never have been levied as a tax in the first place. Those who had the courage to refuse to pay at the time were an integral part of the reason that the disastrous experiment was abandoned just a few years later. The idea that they would now somehow have a change of heart after a couple of decades is preposterous – presuming, of course, that they are even still alive.
You can’t lose something that you never had in the first place.
This, by the way, is what the Scottish Conservatives (that titan of a political force) had to say:
The Scottish Conservatives said effectively cancelling poll tax debt raised “many unanswered questions” and claimed many people in Scotland would be “astonished” to have a government “which is basically advocating not paying tax”.
(source)
It’s worth noting that unpaid poll tax debts have been effectively written off in England, due to the differing laws regarding prescription and collection. To suggest that Scots should have to pay back unfair debts that have already ceased to be collectible in England and Wales is clearly nonsense. It’s exactly this sort of uninformed attitude that increases the tension and calls for independence in the first place.
Tax and the Electoral Roll
The right to vote should not come along with an obligation to pay the state for the privilege. This is something that has already been well fought and established. It is true that councils have an obligation to pursue tax that is owed, as a creature of statute. However, to go after voters who have been freshly re-engaged in politics because of the independence referendum, in order to attempt to collect a tax that is all but dead is despicable. Rather than choosing to highlight the issue to the Scottish Government and attempt to have the law changed, Labour have instead attacked the very people that they are meant to stand up for.
Their relevance in Scotland is rapidly coming to an end.
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UK Immigration Injustice and the ‘Freedom of Movement’ – My Dog has More Rights than my Partner
A few years ago, I proposed to a blue eyed, blonde haired American girl named Grace. She lived in Denver, Colorado, and I in Glasgow, Scotland. I told her I knew it would be rough, but I was prepared to do whatever we had to so we could be together. We agreed that we would pursue the legal path of least resistance – which was for her to move to the UK. This was partly down to the minimum income requirements imposed by our respective Governments (I had a higher paying job at the time), but also to do with having more experience of the British legal system.
Despite being the lesser of two evils, the process itself was hellish.
There were endless contradictions, blatant flaws, and convoluted evidential requirements. Just when it seemed like we had gotten over one obstacle, another illogical one would present itself. Often, I would literally be ripping my hair out in sheer exasperation at the injustice of the whole thing. How could they get away with this? It seemed clear that the problems were there by design rather than incompetence. Every part of my being wanted to scream from the rooftops to tell people about what was really going on; to publicly question why – despite all of the rhetoric from the UK Government about wanting immigrants who add value to our society – my future wife was banned not only from working, but from volunteering.
I didn’t. To this day I am still wary of openly criticising the policies on immigration too heavily, as we are locked into the process for years to come. The decisions that we would be calling into question would be made by the very same people and organisations that could deny any of our future applications on a whim.
With just days before the people of Scotland decide to vote on independence, it’s important that I make this clear: The UK’s immigration policy is fundamentally racist, with the system deliberately left broken. As a result, British citizens have less rights in their own country than those from elsewhere in the EU.
Actual paperwork aside, here’s a specific example:
* Grace requires a specific residence visa to live in the UK. To avoid waiting weeks for a decision, we have to go to a dedicated UKVI (formerly the UKBA) office. As there is only one office in Scotland (with limited hours), this meant travelling to Liverpool to get an appointment. The cost for this privilege (which has to be renewed every couple of years) is around £1000.
* Each time Grace arrives in the UK, she has no automatic right of entry. She must present her passport and residence card, along with a completed landing form. Providing that entry is granted at the border, her passport is stamped with the entry date, and her fingerprints taken.
* If a German citizen came to the UK, they would have the right of residence under the European Union’s regulations on freedom of movement.
* The German citizen’s partner would automatically have the right of entry to the UK, as long as they were either travelling with them at the time, or coming to join them in the country. Their passport would not ordinarily be stamped, and they would not require any visa or residence permit, as they were there by virtue of the German citizen’s Treaty rights.
The UK cannot impose restrictions on the freedom of movement of citizens of the EU or their families (allowing for the relevant definitions in question), but they are able to impose whatever restrictions they like on their own people. This is because it is not counted as discrimination against the citizens of another member state.
In short, this means that because of Westminster immigration policy, I (as a British person) have less rights than somebody from anywhere else in the European Union.
In order to gain the same protection as other European citizens, I would first need to move to a different country within the EU, stay for three months (in the ‘pursuit of an economic activity’ – working, basically), and then return to the UK with Grace. This is a complicated route, and one established by the case of Surinder Singh.
So why does this ridiculous situation exist? Simple. The ideological pursuit of the Tory government. Hey, Better Together, right?
But hey, want to bring your dog with you from the USA? Not a problem.
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WordPress.com Legal Hall of Shame
Every day people make attempts to censor bits of the Internet they don’t like.
Working at WordPress.com, we get our fair share of these. We’ve published a list of some of the worst offenders in our Hall of Shame.
Take a look here:
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‘Family Friendly’ UK Government Policies. What About Immigration?
Ever seeking to be seen as the ‘family man’, David Cameron has stated that in future, all government policies should pass a ‘family friendly’ test before becoming law. (#)
It should be pretty clear to anyone with a critical mind that this is nothing more than meaningless spin and rhetoric. Cameron’s government are focussed on what benefits the privileged, not the underdog, but they have to appeal to a moral position in order to condition skeptics into voting for them. However, there’s one specific example that immediately comes to mind that should illustrate the duplicity involved with this proclamation: that of immigration.
The usual bullshit position on immigration in the UK tends to be: “we’re here and it’s our right to be here – nobody else should be allowed. Foreigners should just go home.” – worded more or less diplomatically depending on who is involved. Immigration? Pah! Why should those immigrants be considered anyway?
Interestingly enough, experience has shown that this dogma transforms (as do many others) when the issue comes closer to home. It’s easy to dismiss immigrants of a different colour or nationality in the abstract, but not so much when one of your family members is separated from a loved one because of harsh and unpredictable immigration regulations.
The fact is that immigration policy in the UK is racist, and purposively both complex and contradictory in order to make the application process as difficult as possible. There are no elements of fairness or justice in how people are dealt with, and what results is a maddeningly frustrating and expensive undertaking for anybody who dares to fall in love with somebody from another country. When the system invariably break down, people are forced to appeal to the safeguard of the European Convention of Human Rights, which is then handily used as a scapegoat for undermining national sovereignty. Few point out the responsibility of the UK government to ensure that the system is fit for purpose in the first place.
There are endless amounts that have already been written about my own experience with the UK immigration process alone, but never published. It’s something I constantly swither over making public, partly through fear of any future reprisal. After all, we still have a number of years to go before we are completely out of the woods, and at any point our hard-fought battles could be revoked. Why is so little said about this stuff in detail by those who go through it? Because we are terrified of the possible consequences that might happen. People should know about what injustices happen in the system, and freedom of speech should guarantee the ability for that to happen, but who wants to risk it when their application may be denied?
For those of us who are on the receiving end of such policies, we know how awful it is. We know that immigration is a disgusting mess; one that has no concern for families, or for keeping them together. We know that kids get used solely as an excuse to raise the barrier for entry to the UK, not treated as human beings. We know that what really matters here is ethnicity, not family values. We know that it’s a specific kind of morality that is in mind here: that of the white, mother and father, British kind. We know that all this is true, and have resigned ourselves to being subjected to that, often silently… but to then turn around and talk about the importance of ‘family friendly’ policies is just flat out insulting.
Don’t believe a word of this pish.
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Sorry Ms. Jackson.
At WordPress.com part of my job is to push back against those who seek to abuse the law to censor blogs that they don’t like or agree with. Complainants commonly make claims using the process of trademark and copyright law to intimidate sites into doing what they want, even where they have no valid right to do so. Sadly, many people don’t have the knowledge or resources to fight against this sort of thing, and will remove content after being on the receiving end.
Recently we (the Terms of Service team) received correspondence from someone claiming to act on behalf of Janet Jackson. They had submitted a trademark complaint about the use of the phrase ‘Janet Jackson’ on a particular website. Effectively, they wanted the article removed for an alleged violation of their trademark, despite the fact that the page only mentioned Janet once. This is clearly not what trademark law is meant to be used for – something any law student would be able to tell, and so was clearly just a cynical ploy to have the content removed.
We refused to take action against the site, and notified the owner about what was going on. She has posted up a great response over on her blog. Here are some excerpts:
Allow me to convey my gratitude as both a fan and a corresponding legal target. I recently received the most flattering letter from your IP lawyers in which they allege that I committed a federal crime of TM infringement by mentioning your name in a blog post. That they would devote time and energy to catching my blog in their social media dragnet and do me the honor of writing a cease and desist letter is thrilling.
You see, humble as it may be, I take my writing very seriously (as, apparently do your lawyers). I have a Ph.D. in English, teach college writing and literature courses in Boston, and am working on my first novel manuscript. For anyone to allege lightly and insubstantially that my writing infringes on any kind of TM, IP, Copyright, is personally insulting and slanderous. WordPress’s lawyers have proven their worth by establishing promptly that your lawyer’s charges against me are entirely unfounded. I will not burden this article any further regarding the ins and outs of IP law and this case. WordPress understands the importance of protecting independent writers and free speech from corporate legal bullies.
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The ‘Right to be Forgotten’ is not a Bad Thing
There has been much said in the past week about the ‘right to be forgotten’ principle being developed in European Law, after the decision by the European Court of Justice in the case of Google Spain v AEPD and Mario Costeja González.
Why this decision isn’t a good thing
The decision of the ECJ has been subject to swathes of criticism for a variety of reasons. However, one of the biggest issues to raise its head is the ideological discussion of Data Protection v. Freedom of Expression.
Originally, data protection was intended to help protect individuals from organisations collecting and storing information on them erroneously. In general, data protection is a good thing. Infact, it’s bloody awesome. It means that when any company or other body collects ‘personal data’ on you, recording it in a filing system, you have the right not only to see it, but to have inaccurate data modified, as well as to prevent the processing of it for marketing purposes.* Sounds good, right? Oh, and this also applies to organised filing systems that are stored on paper, not just electronically.
In reaching its decision in the Google Spain case, the ECJ has applied the established approach to data protection, whilst at the same time injecting the relatively new principle of the ‘right to be forgotten’. The problem with this is that the circumstances are fundamentally different to those in which the protections were introduced to be applicable to.
In the Google Spain case, the information was held to be legally published on the site of the newspaper in question, and so is not required to be removed. However, because Google collected, stored, and processed the links to the information, it was then considered a ‘data collector’ under the data protection definitions, and so obliged to consider, and give effect to the removal request.
This is DUMB.
This is not the same as a situation where an organisation is keeping detailed personal records on an individual (such as their medical details, telephone number, or address, for example), that would not otherwise necessarily be found elsewhere. In this situation, the information is already in the public domain, published lawfully. The fact that Google collects the locations of this data, stores it, and then offers up the hyperlinks in search results should not bring it under the gambit of The Directive in its current form. I won’t even begin to think too much about the baffling way in which this seems to fly in the face of the general approach to hyperlinking that was laid out in the Svensson case, earlier this year.
In any event, these removals only apply to the EU – not to Google sites (or those of any other ‘search engine operator’) that lie outside. Clearly the ECJ must not have heard of a proxy before. At the root of it, this is bad law because in the context of a global Internet, it is meaningless.
Why the right to be forgotten isn’t a bad thing
When the right to be forgotten was first being discussed, it was in relation to something far more sensible – something which had very little to do with freedom of expression at all. It was to do with the right of users to have online service providers remove the personal information held on them when they chose to delete their account. Ever tried to delete your Facebook account completely? It’s not exactly a walk in the park. It wasn’t about trying to hide past transgressions that have already received media attention, and it wasn’t about curtailing the basic architecture of the web – it was about being able to tell Zuckerberg that when you want to leave, they should honour that.
The problem with the ECJ’s decision is the way in which they have applied the principles of data protection, rather than data protection itself. Whether or not the Court wilfully misunderstood, in order to crowbar the right to be forgotten into the judgement in this case is one thing, but that doesn’t mean the entire principle should be dismissed.
Sadly, a lot of the commentary has focussed on the specific facts of this case, and applied them broadly to support a wider theoretical gap between the supposed American principle of freedom of expression, and the European importance on privacy. Whilst that is a whole separate discussion, I do not believe that this should be reduced to some sort of absolute Transatlantic ideological difference. Instead, it should be seen for what it is: a bad application of principles that are fundamentally designed to protect individuals.
The right to be forgotten is valuable, but it should never have come close to impinging on the freedom to ‘receive and impart information‘ on that which is already lawfully published.
* This interpretation is based on the UK Data Protection Act of 1998, which gave effect to Directive 95/46/EC – the EU Data Protection Directive.
More reading:
You can read the full text of the original application, the opinion, and the judgement of the ECJ over on Curia.
The relevant (English) press release from the ECJ on the Google decision is here.
Here is a helpful description of how Google’s new form dealing with right to be forgotten requests will operate.
Stanford Law Review article on the Right to be Forgotten here.
Article on the decision and censorship from Index here.
‘What you need to know about the ‘Right to be Forgotten’ – here.
