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Final studies Topic 5-8
Cyberlaw
Multimedia University
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Final studies
Topic 5: Signatures <General> E-Commerce: Business transaction negotiated over an online system and parties interact electronically rather than physically
Shrink wrap, browse wrap, click wrap, consent and terms, formation of e-contracts and digital signatures
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<Legislation> Electronic Commerce Act 2006
Contracts Act 1950 agc.gov/agcportal/uploads/files/Publications/LOM/EN/Act%20136.pdf
<3 types of contract and their validity) Shrink wrap >Purchase agreements that are attached to shipped products that contain terms and conditions >>There are terms and conditions in the wrappings >>>Inside the container or process of downloading it is accompanied by an End User License Agreement (EULA)
>Controversial because sometimes contain extensive liability limitation (abuse, improper usage of the concerned products) >>Presented to the user when they open after they have accepted and paid for the product (after the contract/sale-purchase is signed) >>Not provided clear and unequivocal acceptance to the shrink wrap agreement (Clear acceptance not shown)
>S. 10 of Contract Act >>(1) All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Browse Wrap >Agreement is entered into when party browses a site and there’s a notice that states that browsing = agreement to following the Terms and conditions >>Reasoning: Browsing after the notice = agreement >>No express demonstration of consent since by using the website itself you agree to it >>Browse website: Shows that you agree to terms and conditions and the processing of data
>Specht v Netscape Communications Corporation (whether sufficient notice was given for browse wrap to be valid) (casebriefs/blog/law/contracts/contracts-keyed-to-murphy/the- bargain-relationship/specht-v-netscape-communications-corporation/) >>Fact: Company allegedly violated privacy and did fraud when the Website urged users to download
a programme without clearly showing the TAC when using the software, which was made available only when scrolling at the bottom of the download page and clicking the hyperlink. plaintiffs alleged that because they downloaded Defendant’s SmartDownload program, along with Netscape Communicator, Defendant was able to unlawfully eavesdrop on their internet communications. >>> Because of the way Netscape had its download setup online, Plaintiffs were not required to read the full terms of the contractual agreement, including an arbitration clause, before they clicked the download button. The District Court found that the downloading of software did not constitute an acceptance of Defendant’s terms because there was no reasonably conspicuous notice and because a reasonable internet user would not expect to submit to an arbitration clause upon installing a free download. Defendant appealed. >>>Held : Agreement only consented if users gotten actual/constructive notice of the TAC and should signify consent by clicking the “I agree” button. Company is liable for violating privacy and fraud (needlessly complicated way to show TAC and not justified)
>Hubbert v Dell Corp: (itlaw.wikia/wiki/Hubbert_v._Dell) >>Repeatedly showing and reminding that all sales are subjected to the TAC is sufficient notice >>Brought computers online -> Advertised as “fastest, most powerful processor available” -> Not entirely true and claimed for misrep >>> Dell points out that the “Terms and Conditions of Sale”, which were accessible by clicking on the blue hyperlink located on each of the five webpages the plaintiff was required to visit when completing an online purchase, stated in the opening paragraph “... this document contains a dispute resolution clause.” Additionally, the defendant points out that a hard copy of the “Terms and Conditions of Sale” was sent to all plaintiffs in the same shipping boxes the computers arrived in as well as on the back of every plaintiffs’ invoice.
Click wrap >Aka Click through agreement or Click wrap license >When the click on a link amounts to an agreement >>Or when you press the “I accept/I agree” button
>Cases >>Register v Verio Inc (Definition) >>Under a click wrap agreement, potential licenses are presented with proposed license terms and forced to expressly and unambigiously manifest either assent or rejection prior to being given access to the product”
>Steven J Caspi, et al v The Microsoft Network >>Held: Plaintiff entered into the agreement by clicking the mouse to be bound by the terms of the subscriber agreement -> Required to first view the scrollable terms and next to it is the “I agree” button. This design generated an enforceable contract
>Validity of click wrap >>Groff v American Online Inc (casetext/case/groff-v-america-online-inc) >>>Click wrap has an agreement to settle it via a specific jurisdiction >>>Plaintiff has signed the clickwrap when he pressed yes >>>The plaintiff was from Rhode Island and was a subscriber of the defendant’s. The plaintiff sued the company for violating the consumer protection legislation. In orderto become a member, a user
that monitor networks -> Got into an agreement -> dispute arose between the parties relative to the purchase order, and i filed a complaint that alleged, among other issues, breach of contract and violation of Mass. Gen. Laws ch. 93A, and asserted that it was entitled to specific performance, requesting perpetual upgrades of defendant's software and unlimited support. NextPoint argued that even if i's allegations were true, the clickwrap license agreement limited NextPoint's liability to the price paid for the software. NextPoint filed a motion for partial summary judgment. >> Was the clickwrap agreement enforceable under the laws of the Uniform Commercial Code? Yes
<Limitations to impose terms>
Comb v. Paypal >Poor customer service >>1st plaintiff Improperly deducted by Paypal and paypal was not very responsive >>2nd plaintiff account was deducted and gave to a 3rd party and was also not responsve >>3rd plaintiff account was froze by the result of a 3rd unauthorized party
>Paypal: Motion to compel arbitration by virtue of the click wrap agreement >>Whether the user agreement has been agreed upon >>Whether the user agreement are fair
>Freezing someone’s funds is more of the power of the court and paypal should not have this >Arbitration provisions – cost prohibitive – average paypal transanction was $55 and you have to get into arbitration, it would cost you 5000 >Arbitration must be carried out in California – which is convenient for paypal but not to the rest of the world/user base
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<Onerous terms> Whether unusual/onerous terms were brought to consumer’s attention
Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd (lawteacher/cases/interfoto-picture-library-v-stiletto.php) > Stiletto Visual Programmes (SVP) ordered 47 photographic transparencies from Interfoto Picture Library (IPL). On the delivery note was a clause stating that transparencies should be returned within 14 days of delivery. If they were not so returned, a holding fee of £5 per transparency per day would be charged. SVP returned the transparencies four weeks later and received a bill for over £3,700. SVP refused to pay and IPL successfully received judgement for payment. SVP appealed. > SVP contended they had never dealt with IPL before, were unaware of their standard conditions and they had not been sent a copy of their conditions prior to their having returned the transparencies. Even if they had been sent a copy of the terms, IPL had not taken sufficient steps to communicate their onerous terms, namely, that the fees were more than ten times higher than other lending libraries >Held: The clause had not been successfully incorporated into the contract. Where a clause is particularly onerous, as in this case, and the fees are exorbitant at ten times the level of other photographic libraries, the party seeking to rely on the clause must show they have taken reasonable steps to bring the clause to the other party’s attention. IPL had failed to do this and they could, therefore, only recover fees assessed on a quantum meruit basis.
Malaysia pov >Contracts Act 1950 >>S. 10 >>>. (1) All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
>Electronic Commerce Act 2006 (kpdnhep.gov/images/dokumen/awam/perundangan/AktaBI/11-bi-Electronic- Commerce-Act-2006-as-at-1-11-2012) >>S. 4 >>> The application of this Act shall be supplemental and without prejudice to any other laws regulating commercial transactions. >>S. 6 >>> (1) Any information shall not be denied legal effect, validity or enforceability on the ground that it is wholly or partly in an electronic form >>S. 7 >>> (1) In the formation of a contract, the communication of proposals, acceptance of proposals, and revocation of proposals and acceptances or any related communication may be expressed by an electronic message. >>> (2) A contract shall not be denied legal effect, validity or enforceability on the ground that an electronic message is used in its formati >>S. 9: Signature
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<Formation of E-contract>
>•Alibeigi, Ali & Munir, Abu. (2016). Electronic Contracts, the Malaysian Perspective (Research) (poseidon01.ssrn/delivery.php? ID=284123064090005013108082127104105065040086057015 091007085093116078112064011007 09006910611404401705904800209903012211410702909306007804708705202107700608011710 61240920200600790290860701190850021191010710141180660051030981051170890680690950 65074025029125&EXT=pdf&INDEX=TRUE)
S. 20 Electronic Commerce Act: Time of dispatch > Unless otherwise agreed between the originator and the addressee, an electronic message is deemed sent when it enters an information processing system outside the control of the originator.
S. 21 ECA: Time of receipt > Unless otherwise agreed between the originator and the addressee, an electronic message is deemed received— >>(a) where the addressee has designated an information processing system for the purpose of receiving electronic messages, when the electronic message enters the designated information processing system; or >>(b) where the addressee has not designated an information processing system for the purpose of
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<Asymmetric cryptocurrency> used to simulate the security of a signature in digital, rather than written, form. >creates a digital signature using 2 different asymmetric cryptographic ‘keys’. The signer attaches a digital signature to a document using a private key or code.
>cybernotary (legally recognised certification authority that issues keys for digital signatures) will be able to issue the key’s pair, identify the owner of the key, verify by reference to the public key listed in a valid certificate issued by a licensed certification authority and serves as a repository for public keys.
>>Licensed certificate authorities >>>1 Digicert Sdn Bhd >>>2 Trustgate Sdn Bhd >>>3 Applied Business Sdn Bhd >>>4 Technologies Sdn Bhd
Method of how it works >•There are 2 keys: 1-Private key to encrypt a message digest 2-Public key to decrypt and verity that message was encrypted using the corresponding private key
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<Digital certificate>
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<Digital signature act 1997> (wipo/edocs/lexdocs/laws/en/my/my058en.pdf)
S. 2
>Definition section
S. 62
> (1) Where a rule of law requires a signature or provides for certain consequences in the absence of a signature, that rule shall be satisfied by a digital signature where— >>Digital signature verified by a valid public key >>Said digital signature was affixed by the signer with the intention of signing the message, and >>Recipient doesn’t know/notice that signer has breached a duty as a subscriber or does not rightfully hold the private key
> (2) Notwithstanding any written law to the contrary— >>(a) a document signed with a digital signature in accordance with this Act shall be as legally binding as a document signed with a handwritten signature, an affixed thumbprint or any other mark; and >>(b) a digital signature created in accordance with this Act shall be deemed to be a legally binding signature.
> (3) Nothing in this Act shall preclude any symbol from being valid as a signature under any other
applicable law.
S. 64
> (1) A message shall be as valid, enforceable and effective as if it had been written on paper if >>Has a complete digital signature, and >>Said digital signature is verified by the public key listed in a certificate which was issued by a licensed certificate authority and was valid at the time the digital signature was created
> (2) Nothing in this Act shall preclude any message, document, or record from being considered written or in writing under any other applicable law.
S. 65
> A copy of a digitally signed message shall be as valid, enforceable and effective as the original of the message unless it is evident that the signer designated an instance of the digitally signed message to be a unique original, in which case only that instance constitutes the valid, enforceable and effective message.
>>>>>Copyright is easier; protection internationally, berne convention, no registration. And it was implemented all over and protection is long
>>Does not include: Official texts of gov or legislative or judicial decisions, political speeches/debates
>>Cases for Literary works: >>University of London Press Ltd v University Tutorial Press Ltd >>>Case concerning who compiled math questions for the students for exam. London press wanted to stop that >>>Held: Anything that is written is literary works
>>Exxon corp v Exxon Insurance Consultants International Ltd >>>Invented the word Exxon (like IKEA) >>>>In Malaysia, they used to be Eson. They deal with petroleum >>>Esson insurance is not related >>>Exxon tried to argue that Exxon is a literary work >>>>COA: Conveys no information, no instruction, no pleasure, simply an artificial combination of words to symbolize the company >>>>>Therefore; this is not a literary work >>>>>>Literary work is a page, a paragraph. Not a word
>>Francis Day and Hunter Ltd v Twentieth Century Fox Corp, Ltd (there are 3 other cases with Francis day) >>>They have ownership of a song published in 1892 “the man who broke the bank at monte carlo” >>>Plaintiff argues that the movie title is infringing the song >>>>Content of movie is nothing related to the content of the song >>>Held: General rule: Title is not a literary work because not sufficiently substantial
>>Shetland Times Ltd v Wills >>>Scotland case in Outer house (like the HC) >>>At the interlockutary stage (Plaintiff ask for a preliminary order to stop the defendant from continuing from what they are doing. In this case, infringing the copyright) >>>Def was website who aggregates news articles from other news websites >>>>Plaintiff is one of the news websites >>>Front page -> News article >>>Def get income from ads >>>The title of the news articles were literary works >>>>When the def put titles, alleged said that it infringed >>>Held:The names convey info, arguable that there was infringement
>>CF Fairfax Media Publications Pty Ltd v Reed International Books Australia Pt Ltd >>>No copyright in headlines as literary
>Artistic work >>S. 3: Will not judge what is and isn’t art
>>>A: Graphic work, photograph, sculpture or collage irrespective of artistic quality >>>B-C:Work of architecture or artistic craftsmanship
>>Before amendment: Peko Wallsend Operations v Linatex Process Rubber Bhd >>>3d objects also subject to copyright protection as artistic work >>>Sued under copyright that the def is selling is infringing on the drawing owned by the plaintiff >>>>By working backwards >>>Court had to answer whether a 3d object may infringe on a 2d drawing >>>>3D product also gets protection. >>>>>Reverses engineering
>>Post amendment: ‘reproduction’ in s 3: “the making of one or more copies of a work in any form or version, and in relation to an artistic work includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work, and “reproducing” shall be construed accordingly”.
>Musical work >S. 3: Musical work = Musical notation
>Sound recording >Sound recording: capable of being perceived aurally and reproduced by any means, but does not include a soundtrack associated with a film >Singing itself has no copyright protection but the sound recording does
>Broadcast >Broadcast = transmission of visual images, sounds or other info
Typographical arrangement >S. 9: Copyright in published editions of work >>(1): Copyright subsists in every published edition >>(3)
Derivative (You would have copyright to the translation) >S. 8 (1) (a): Translations, adaptations, arrangement and other transformations of works protected as copyright >>S. 8 (1) (b): Collection of works eligible for copyright or compilation of mere data >>>Collection works = S. 7(1): Compilation of literary works such as essays, owned by respective authors. He has a selection of stuff and arrangement of stuff = It becomes of collection of works eligible for copyright
Adaptation
>Fixation - Idea in your head does not count >Must be permanent and not temporary
>S. 7(3): For literary, musical or artistic work >>But they’re already physical/has fixation as is (Note: Digital form counts) >>Only the thing that does not have physical form is broadcast >>>Though broadcasters normally record it
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<Qualification and methods>- >Main: s(1) Copyright shall subsist in every work eligible for copyright of which the author or in the case of a work of joint authorship, any of the authors is, at the time when the work is made, a qualified person >3 ways to check qualification
Qualification by authorship >S. 3: Who is an author >>>A: Literary works = writer/maker >>>B: Musical work = Composer >>>>Melody is authored by composer. Whether lyrics forms part of the musical work, or is it a separate work in the form of literary. If you look at definition, it is confined to the composer. Lyrics are literary and they’re the writer. Musical work = Song in the form of musical works, lyrics in the form of literary works >>>C: Artistic work = The artist >>>D: Photographs = the taking of the photograph were arranged by the author/person >>>>What does it mean by arrangement, since there are lightman, the cameraman, the director and the person who puts the set, the model, etc etc etc. Does it include financial arrangement? (probably not. Since there’s no artistic input. They are the commission, S. 26 (2)(a) ) >>>E: Sound recording/film recording = arrangement for the making of the film or recording >>>F: Broadcast >>>G Anything else = the work was made by this person
>S. 3: Qualified person >>Citizen/permanent resident (A person with a work visa does not count) >>>The work need not be in Malaysia, but it will be auto protected (S. 1 (10))
Qualification by first publication >S. 10 >>(2): Shall subsist in every work if it first exists in Malaysia >>>S. 4(3): First publish if = A; the work/performance was first published in Malaysia and nowhere else. Or. B; Published elsewhere but published in Malaysia within 30 days of such publication elsewhere (published in another country but brought into Malaysia within 30 days, it is considered “first publish”)
>What does publish mean S. 4 (1) >>Literary/musical/artistic published if copy/copies made available in a sufficient to satisfy the
reasonable requirement of the public by sale or otherwise (loan it, rent it, etc. Important is that it satisfies public demand) (Even if you sell 1 copy) >>Francis Day & Hunter v Feldman [1914] (Diifferent Francis case with the literary work title song) >>>6 copies of the song was put in the plaintiff’s shop. No immediate demand and after a few weeks, no one bought the company, the copies put into storage. Customers then asked for the thing later. Issue: Whether put the 6 copies on the shelves was sufficient to satisfy the public ‘demand’ >>>Held: Yes it’s a publication
Qualification by being made in Malaysia Hexagon Tower Sdn Bhd v Polydamic Holdings Sdn Bhd >>S. 10(3): Made in Malaysia = When the plaintiff’s drawings were actually completed >>>Note: It is difficult to know when works are actually completed since works are rarely completed (They may be modified. Song done -> Lyricist sing -> Post process -> Wrong stuff -> Rework -> Post process, etc) There are many versions of a song/object. So when is a work completed?
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<Authors> Importance >Satisfy qualification. If the author is a qualified person, then the works gets protected in Malaysia – S. 26. It even counts if it’s a citizen/resident of a WTO or Berne country – Qualification by authorship >Acts as a first owner of copyright – S. 26 (1); author is the first owner >Copyright protection/duration – Depends on the life of the author – S. 17 >Moral rights – it comes about as the same time with copyright – Copyright can be transferred but moral rights stay with the author
Whether a body/corp can be an author >Confusion of arises due to definition of “qualified person” – Qualified person is an author >>S. 3 (b): body corp established in Malaysia >>>It Does not say that it is not an author >>>>It only has relevance in S. 10 (1)
>S. 10 (1): Author is a qualified person >Therefore, body corp can be an author >>Raised in a few cases, the majority do agree with that a co. can be an author >>>Creative Purposes Sdn Bhd case >>>Rock Records (M) Sdn Bhd case; author of sound recording is the sound recording company which made arrangement for the recording of the songs. (Although these people might be the ‘commissioner’)
>S. 26 (2): Company is the 2nd owner
<Joint authorship>
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<Ownership> Yeok Kee Aun v PI Capital Asset Management Sdn Hd: Steve Shim J: “‘authorship’... ‘ownership’...
January of the following year and 50 years from the first of January (29th July until 31st of December 1999. Starting of 1st January of next year (2000), it shall continue until 31st December 2050) (double check this later) (1st of january is celebrated as public domain day) >>>Note: it is technically wrong under Burne convention – it is longer tho, burne convention lays minimum – The problem with this is that it lasts until published, hence perpeptual – there shouldn’t be a perpetual copyright
>>(3): when the identity of the author is not known/uses pseudonym? (2) >>>If known, use (1) >>>>But what if published under pseudonym? Do you use (2) or (1)
>>(4): Author in the joint authorship shall be considered as the author who diess last
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<Exclusive rights> references to S. 27 (2): Owner of copyright has exclusive right to control
>S. 13:
>Shall have exclusive right to control in Malaysia (exclusive right = monopoly to control) >>A-F >>>A: right to control reproduction in any material >>>>Reproduction: S. 3 = The making of copies in any form (includes 2d to 3d and 3d to 2d) (based on the original case)
>>>aa: Communication to the public. S = Transmission of a work >>>>Need not only be through internet, it includes broadcast through wireless means, etc (tldr it’s broad)
>>>B: Performance, showing or playing to the public >>>> Public: Jennings v Stephens: Play to members. Public can become members by paying a fee. Member playing for members. Does it count? It is public (no domesticitiy or quasi-domesticity qualities)
>>>>Concept of public is different; it is not a few friends, it must be substantial number of people >>>>>Under communication of people. It is ready to be transmitted (look up S. 3 in detail)
>(E): only for first distribution of copies. (Resale/subsequent sale is not under Para E, since it is under para A)
>>(A)Book sold in Singapore – you bring it into Malaysia – copyright cannot say that they cannot bring it into Malaysia >>>An effective way to control piracy is via border – ssstopping whole container
>reminder that you assign copyright in all WTO/Burne convention countries
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<Moral rights>
S(2)- Subject to this section, where copyright subsists in a work, no person may, without the consent of the author, or after author’ death, of his personal representative, do or authorize the doing of any of the following acts:
(a) the presentation of the work, by any means whatsoever, without identifying the author or under a name other than that of the author (Paternity right) ; and (b) the distortion, mutilation or other modification of the work if the distortion, mutilation or modification— (i) significantly alters the work; and (ii) is such that it might reasonably be regarded as adversely affecting the author’s honour or reputation (Integrity right).
Syed Ahmad Jamal v Dato Bandar Kuala Lumpur >During the modification works, the unique plinth was removed with the consequence that there was nothing to identify the plaintiff as the author of the sculpture. In addition, the defendant has carried out several modification work include the removal of the ‘Pyroceram’ slabs, the use of stainless steel to cover the Lunar Peaks, the fixing of steel tubing etc. which rendered the plaintiff disappointed, upset, and frustrated that his dignity as a well-known artist was severely injured by the modification which he regarded as ‘very unethical’. >the defendant’s act had infringed the moral right of the plaintiff to be identified as the author of the work. The modification had not only significantly altered the character and spirit of the Lunar Peaks which it might be reasonably regarded as adversely affecting the plaintiff’s honour and reputation
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<Infringement> (Add in Cyberlaw infringement stuff) Direct S. 36 (1) >does or causses any person to do without license of the owner an act which is controlled by copyright >>The word license is under S. 27: >>>Normally people would ask for permission, not license. Most of the time it is oral/etc >Act that is controlled is S. 13: the acts are (a)-(f) in order to count, without license of the owner
>Francis Day & Hunter v Bron (3rd francis day case) >>Defendant who was the published has a song called “in a little Spanish town” composed by someone else. Plaintiff claims that the defendant’s song infringes the plaintiff’s song since there’s substantial similarity between the two >>Reproduction in a material form – need only be in substantial part, not a whole >>Diplock: two elements: sufficient objective similarity between the whole or substantial there of” >>objective Assestment is supposed to be done by a neutral party and it must be sufficient (substantial part) >>Substantial part = not necessarily quantitative. It is qualitative in nature
>>Ladbroke football ltd case: depends on the quality than the quantity that is taken >>>Argued that it was subconscious copying, which does not count as substantial copying >>>Copying errors is very good proof of causal connection >>>>Maps, databases, diagrams, fake entries, etc
>>>Designers guild case
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<Issue of copyright on the internet
S. 36A
>. (1) If a technological protection measure is applied to a copy of a work by or with the authorization of the owner of the copyright in the work, no person shall circumvent, or cause or authorize any other person to circumvent, the technological protection measure (only if used to exercise owner’s rights or to prohibit unauthorized acts_
S. 36B
>(1) No person shall >>(a) remove or alter any electronic rights management information without authority; or >>(b) distribute, import for distribution or communicate to the public, without authority, of works or copies of works knowing that electronic rights management information has been removed or altered without authority,
ISP may have facilitated infringement >Direct infringement: Gave reproduction rights without consent >Vicarious infringement: Financially gained from infringement of another party while having the right to control and supervise the infringement >Contributory infringement: ISp has knowledge of infringing activity and participated in it
>S. 43B to 43I (LIMITATION OF LIABILITIES OF THE SERVICE PROVIDER) (copyright act)
Religious Technology Centre v Netcom Online (en.wikipedia/wiki/Religious_Technology_Center_v._Netcom_On- Line_Communication_Services,_Inc.) > Netcom did not take any affirmative action that could result in copying of RTC's work. The mere fact that Netcom's system incidentally made temporary copies of plaintiff's work did not mean Netcom had caused the copying. The court further stated that although copyright was a strict liability statute, some element of volition or causation was still required to constitute copyright infringement. Since such element was lacking, Netcom was not liable for direct infringement. The court also considered the negative consequences of holding Netcom directly liable. If Netcom was liable for making autonomous and incidental copies, this would result in liability for every single Usenet server in the worldwide link of computers transmitting Erlich's message to every other computer. The court concluded that there was no need to construe the Copyright Act to make all of these parties infringers.
Sega Enterprises v. Maphia > The defendants owned and operated a computer bulletin board service. Sega was the copyright owner of various video games as well as the trademark Sega. With defendants' knowledge and indeed with their encouragement, users of the bulletin board service uploaded and downloaded various Sega copyrighted video games onto the bulletin board. The court further found that defendants profited from this activity, either via barter for other games or through sale of other services. Moreover, the court found that many of the games were located in files on defendants'
computer bearing the name Sega, which also appeared when a Sega video program downloaded from the bulletin board was run. Sega brought an action against the defendants, charging them, inter alia, with federal copyright and trademark infringement, unfair competition and false designation of origin, as well as the violation of a series of California statutes. On Sega's motion, the court issued a preliminary injunction, which enjoined defendants from continuing to engage in this conduct and directed the seizure of infringing materials in defendants' possession. The injunction included a provision barring defendants from making Sega programs available to users of the bulletin board in question, or storing Sega video programs in files accessible to such bulletin board users. > MAPHIA violated Sega’s copyrights when its users uploaded the games to its bulletin boards (BBs) and allowed the public to download them. However, Sherman, owner and operator of MAPHIA, could not be found directly liable for copyright infringement. The court relied on Religious Technology Ctr. v. Netcom On-Line Communication Serv., Inc., 907 F. Supp. 1361 (N. Cal. 1995), which “found that the Internet provider was not directly liable for copyright infringement of a copyrighted work posted and distributed through its system. Netcom, 907 F. Supp. at 1368-70.” The court found this to be the case even when the defendant had knowledge of potential copyright infringement by its subscribers. Id. at 1372-73. “While Sherman’s actions in this case are more participatory than those of the defendants in Netcom, the Court finds Netcom persuasive.” Sega failed to show that Sherman himself “uploaded or downloaded the files, or directly caused such uploading or downloading to occur,” so Sherman could not be found directly liable.
> The court found Sherman liable for contributory copyright infringement because Sega established “that the users of Sherman’s MAPHIA BBs directly infringed Sega’s copyright... [and] that (i) with knowledge of the users’ infringing activity, (ii) Sherman induced, caused, or materially contributed to their infringing activity.” As noted above, the uploading and downloading by MAPHIA BB users constituted illegal copying. Through evidence such as print-outs of upload/download statistics and Sherman’s admissions, it was clear that Sherman had knowledge of the copying that was occurring. Sherman contributed to the infringing activity by “provide[ing] the site and facilities for the known infringing conduct. He actively solicited users to upload unauthorized games, and provided a road map on his BBs for easy identification of Sega games available for downloading. Additionally, through the same MAPHIA BBs medium, he offered copiers for sale to facilitate playing the downloaded games
Final studies Topic 5-8
Course: Cyberlaw
University: Multimedia University
