Europe Frees Zorro From Trademark Restrictions

from the z dept

Zorro, the masked vigilante who wields justice in the form of a sword, was first brought to the world in 1919 by Johnston McCulley. As such, some portion of the Zorro existence is now in the public domain in many jurisdictions. That hasn't stopped Zorro Productions Inc. from claiming all kinds of intellectual property rights on all things Zorro, of course. A few years back, there was a lawsuit between Zorro Production and Mars over a depiction of the hero in a commercial for M&Ms. That was a trademark claim, the rights for which Zorro Productions claims for itself, and one of the interesting questions in the case was whether such a trademark claim could be made upon a character that had entered into the public domain. Put another way: can the expiration of copyright law on a fictional character be circumvented through a trademark claim. One of the keys to answering that question, as is discussed in the above post, is whether a specific use of the character would confuse the public as to the source of the original creation, or if it might be misconstrued as any kind of endorsement. Mickey Mouse, for instance, equals Disney. Does Zorro equal Zorro Productions? Of course not.

And now the European Union has recognized that fact, actually going so far as to invalidating the Zorro trademark entirely for that very reason.

Late last month, the cancellation division of the office that manages community trademarks within the European Union issued a ruling declaring that a "Zorro" trademark was invalid in the categories of printed matter and entertainment. According to a just-released English version of the ruling, when the average consumer sees "Zorro," he or she will assume the story of the character is being told, but not recognize "Zorro" as an indicator of origin. As such, it's deemed to be merely descriptive and not sufficiently distinctive.

This was sparked after Zorro Productions had waged a legal war with Robert Cabell, who created a theatrical production entitled Z - The Musical of Zorro. Cabell had responded to the attack by trying to get the EU to acknowledge that the character was in the public domain from a copyright perspective and that the trademarks held by Zorro Productions had been registered fraudulently. The EU concurred.

"If a title in question is famous enough to be truly well known to the relevant public where the mark can be perceived in the context of the goods/services as primarily signifying a famous story or book title, a mark may be perceived as non-distinctive," states the decision. "A finding of non-distinctiveness in this regard will be more likely where it can be shown that a large number of published version of the story have appeared and/or where there have been numerous television, theatre and film adaptations reaching a wide audience."

Zorro, which has resulted in 38 films, fits this description, says the Office for Harmonization, which adds that "although it is possible for titles of books or names of fictional characters to function as indicators of trade origin, it is dependent on the particular goods and services which they are applied for."

And so Zorro has been freed from the EU prison of intellectual property, at least in these respects. And, more importantly, this is a good thing. I have no idea of the quality of Cabell's musical about the masked vigilante, but I damn well know that a character created a century ago, whose author is long-dead, ought not be denied in the use of the public in the aims of creating more art simply because a corporate interest wants to sell non-existent rights to Hollywood.

Filed Under: europe, trademark, zorro

'Duty Of Care': The Friendly Sounding Way In Which Europe Threatens Free Speech & Internet Innovation

from the this-doesn't-end-well dept

As part of the Digital Single Market (DSM) communication, the European Commission has discussed the possibility of imposing a "duty of care" on Internet intermediaries, which would require Internet platforms to take a more active role in policing user content.  Forcing Internet intermediaries to monitor and remove their users' communications is ill-advised from both an economic and human rights standpoint.

The rapid growth of the Internet was not merely the function of technological innovation.  This fundamental restructuring of commerce and communications would not have been possible but for substantive legal reforms that adapted legacy legal concepts to comport with the realities of a hyper-connected Internet age.  Arguably the most important legal and legislative development of the Internet era was the concept of intermediary liability limitations for Internet service providers.  Or, stated in a less legalistic way, the policy choice that Internet services should not bear blame for bad people saying or doing bad things on the Internet.  Given the size and scope of the Internet and the volume of online communications, it is safe to say that Facebook, Twitter, Google, Yelp, YouTube, Allegro, and Dailymotion would not exist today if the law evolved to hold websites and Internet services liable for the actions of their users. Further, imagine operating a telecommunications network with the sum of all this information passing through without being shielded from responsibility for the actions of all of your users.  What venture capitalist in her right mind would invest in a platform that was exposed to liability for billions of websites beyond its control or trillions of posts composed by third parties?  What would Internet business models look like if companies had to pre-screen all user communications before they went live?

Recent developments in Europe, including the Delfi ruling and the DSM "duty of care" proposal, suggest that Internet services may soon be asked to take a more active role in filtering user content. Yet even with advanced filtering tools, unlawful speech is almost always context dependent.  Libel and defamation would not be obvious to a filter.  Even more complex is when lawful speech is used unlawfully, as in the case of copyright and trademark infringement.  Given that rules about these various types of speech are often the product of complex legal cases, even human review of every online communication would not completely shield an Internet company from liability, given that different people can come to different conclusions about whether speech is "harmful." Not to mention that standards for what is permissible speech vary widely from country to country.

Besides the commercial impact, the implications for free speech would also be disastrous. Protections from intermediary liability enable platforms to give people around the world a simple way to express themselves and to share what they love with the world, and to challenge the restrictions of oppressive governments. One study found that when online platforms are regulated on the basis of content submitted by their users, they remove large amounts of controversial but legal content for fear of facing penalties. The UN's Joint Declaration on Freedom of Expression on the Internet recognizes the success of laws such as the CDA, DMCA, and the E-Commerce Directive, stating that "intermediaries should not be required to monitor user-generated content and should not be subject to extrajudicial content takedown rules which fail to provide sufficient protection for freedom of expression."

Even if pre-screening and filtering at scale were feasible, the value of each individual communication — whether it takes the form of a website, a tweet, a Facebook post or a YouTube video — is negligible, where the potential legal exposure is huge; the potential damages for copyright law can reach $150,000 per work infringed.  So, in a world where Internet companies were liable for the communications of their users, a rational company would be incentivized to aggressively censor content, leading to significant blocking of ostensibly legal speech as the costs of under blocking are significantly more than the costs of over blocking.

Historical Context on Intermediary Liability

Initially, the legal status of Internet companies was uncertain.  Problematic cases arose where the courts found Internet companies liable for user-generated content.  However, both the United States and the European Union were relatively quick to act.  In the United States, Congress passed Section 230 of the Communications Decency Act in 1996, which shielded Internet service providers from liability for a variety of actions that were committed by their users.  Although §230 specifically did not include intellectual property infringement, Congress passed the Digital Millennium Copyright Act in 1998, which shielded Internet platform providers from liability for their users' infringement provided they acted quickly to remove infringing content when notified.  In the subsequent report that accompanied the bill, the Senate Judiciary Committee made clear that these intermediary liability provisions were necessary given that the size and scope of the Internet made it functionally impossible for Internet service providers to monitor all the material that they served or indexed.  At the time, Yahoo!, the illustrious example used by the Committee, indexed 800,000 websites.  Counting just websites, and not other forms of content on social media, the number of sites Yahoo! indexed in 1998 was less than 0.1% of the size of the current web.  As new Internet entrepreneurs seek to join the Yahoos, Twitters, and Facebooks of the world, it is imperative that those companies are afforded the same legal protections that allowed the prior generation of Internet success stories to achieve scale.

Europe was also quick to embrace the concept of liability limitations.  In 2000, the European Union adopted the e-Commerce Directive, which endorsed a similar notice-and-takedown framework of Internet service providers for most Internet content.  Since it was a directive that needed to be interpreted by individual European countries, it resulted in some inconsistency of application that provided somewhat less certainty to Internet companies than the U.S. versions of Intermediary liability.  Nevertheless, it has provided the necessary legal foundations for the Internet to grow and expand in Europe.

These laws do not create any general monitoring or filtering obligations for illegal or harmful content. US law states that a service provider need not monitor its service or seek out infringing activity in order to qualify for the DMCA safe harbor.  (This provision is intended to protect user privacy.  Without safe harbors in place, website administrators might be required to search through and peer into their users' otherwise hidden conversations.) Under the e-Commerce Directive, states may not impose general obligations on intermediaries to monitor information or to actively seek out unlawful activity.

If any reform of the e-Commerce Directive is needed, it should be in the direction of giving EU startups and platforms greater assurance that they will not be found liable for the speech of their users.  Adopting a liability regime closer to §230 would provide a critical boost to the growth and global competitiveness of EU communications platforms, review sites, social media platforms, dating apps, e-commerce sites, and the next generation of digital innovators.

Intermediary Liability Enables Flexible Responses to Harmful Content

The existing rules in place in the US and EU have led to strong respect for rights.  Internet platforms already take down a significant amount of content that infringes copyright.  In addition, platforms respond to court orders and cooperate with law enforcement on issues like child sexual abuse imagery.  Finally, while there's no one-size-fits-all solution to the problem of online abuse, many platforms have evolved highly effective community policing and report abuse systems that help stop the spread of harassment, hate speech, and other harmful content.  For example, anyone on YouTube can flag a video for review, and Google employees review those flagged videos for abuse 24 hours per day. In 2014, 14 million videos were removed from YouTube for violation of the site's Community Guidelines.  (Twitter and Facebook also have similar guidelines and flagging procedures that can lead to removal of content and the termination of accounts.)

Unfortunately, as part of its DSM initiative, some are calling for a re-opening of the e-Commerce Directive and implementing a new "duty of care" on Internet service providers.  This "duty of care" would be effectuated by either narrowing, or completely removing, the liability safe harbors available to Internet companies under the e-Commerce Directive.  According to the Staff Working Document that accompanied the DSM communication, the European Commission noted that it was considering "whether to enhance the overall level of protection from harmful material through harmonised implementation and enforcement of conditions which allow online intermediaries to benefit from the liability exemption."  Furthermore, as part of this examination, the Commission is also asking "whether to ask intermediaries to exercise greater responsibility and due diligence in the way they manage their networks and systems… so as to improve their resistance to the propagation of illegal content."

The same document also acknowledges that the intermediary liability safe harbors included in the e-Commerce Directive "underpinned the development of the Internet in Europe."  Let's hope this last statement is borne clearly in mind if any updating takes place, remembering that a consistent process across Europe could be useful, but that a weakening of the liability shield and an extension of proactive monitoring would be economically and socially disastrous.

Economic Effects of a "Duty of Care"

The ramifications for future competition and innovation are also dire if the European Union were to enact a broader duty of care provision for Internet intermediaries.  Given the limitations of automatic filters, and the fact that harmful, illegal content is context dependent, new online companies that offer communications platforms will need to employ large teams of human filters to review user-generated content.

What does that mean for competition and innovation?  It likely means that startups and new business models will be disproportionately affected.  From a venture capital perspective, the imposition of new regulatory costs on traditionally lean startups means that fewer new ideas get funded.  Given that Internet platforms often spend years developing a user base before they devise ways of turning their popularity into revenue, the added costs will also mean that many of these ideas either don't get funded, run out of money before achieving the necessary scale, or simply prove unable to turn a profit.

The companies best positioned to bear these new cost burdens are the current Internet incumbents who have large legal departments and significant revenue.  And depending on how new regulation might be written, even a large number of human reviewers still cannot catch everything.  The number of humans needed to review 500 million tweets a day or 1 trillion Facebook posts is mind-boggling.  In the YouTube example alone, 300 hours of video uploaded per minute makes 18,000 hours per hour or 432,000 hours per day.  That would require non-stop oversight from 18,000 people to vet everything–and that's assuming they never get a day off and never sleep. (Not to mention, this makes it harder to push back against laws from more authoritarian regimes demanding the censorship of "harmful information".)

Higher regulatory and legal burdens threaten the robust competition and disruptive innovation that has characterized the Internet ecosystem over its short history.  High regulatory costs entrench incumbents.  This could disproportionately affect European companies, as none of the top 15 global Internet companies are European.  However, Europe does have a high-share of the so-called "unicorns" — startups that are valued at more than $1 billion. (And, according to a recently released study, the unicorn population of Europe grew by 13 between 2014 and 2015.)  Furthermore, nearly one quarter of the startups at the 2015 Consumer Electronics Show were French!  As higher regulatory burdens harm smaller companies more than large ones, such an imposition of regulatory costs hurts these plucky startups more than the Googles and Facebooks of the world.

Increasing Liability Would Harm Startups, SMEs and the Broader European Economy

Imposing a duty of care on Internet services wouldn't just harm new startups in the EU.  As we have discussed before, the Internet has transformed the world's economy and spurred economic productivity.  The majority of these benefits accrue to traditional industry, not "Internet companies," through streamlining logistics and reducing frictions in international commerce.  In fact over the last 20 years, the U.S.'s greater economic productivity growth relative to Europe has been powered by its better integration of Internet and networked technology into the overall economy.  Given the role Internet platforms have played in this economic transformation, creating legal frameworks that enable the creation and foster the growth of Internet platforms — such as social media, e-commerce, financial services, crowdfunding, cloud computing, advertising, etc. — is important not just for the Internet sector, but for the broader economy that relies on them to enable their day-to-day business operations.

Not surprisingly, small and medium size businesses often benefit the most from these platforms, as Internet platforms enable them to immediately build infrastructure, conduct traditional back office operations, take payments, easily target advertising to prospective consumers, and reach consumers worldwide through e-commerce platforms in ways that were not possible before the rise of Internet commerce.  With this in mind, it's not surprising that SMEs who heavily utilize that Internet are 10% more productive (and export two times as much products and services) as companies that do not.  Also not surprisingly, SMEs were the key to the U.S. economic and jobs recovery, and are seen as key to powering the European economic recovery.  As European policymakers sit poised to decide the nature and scope of Internet regulation as part of the Digital Single Market (DSM) initiative, creating a legal and regulatory environment for Internet platforms to thrive (and new ones to be created) should be a top priority.  Ensuring that robust online intermediary liability protections extend across the European Union stands as arguably the most important policy imperative of the DSM if Europe wants its vibrant, connected digital economy to thrive in the 21st century.

If anything, for the Internet to continue to grow and thrive, liability limitations for online companies should be expanded and strengthened.  It is a worthwhile and important endeavor for the European Commission to clarify and harmonize liability safe harbors across Europe.  However, harmonization with a weakening of these safe harbors will have negative effects for both freedom of expression and Internet commerce.

Reposted from the Disruptive Competition Project

Filed Under: duty of care, europe, free speech, intermediary liability

EU Politicians Try To Create A New 'Link Tax' To Protect Newspapers Who Don't Like Sites Linking For Free

from the don't-do-this dept

Bad ideas never die. Although there have been some recent minor steps in a positive direction concerning copyright in the EU, politicians have been trying to undermine them with really terrible ideas. We already covered the push to effectively outlaw outdoor photography, and now it appears that (despite already having this proposal voted down), some are pushing for a so-called "ancillary copyright" concept, better known as a snippet tax or a link tax.

The basic idea here is that newspapers that have failed to innovate want to blame third party aggregators (mainly Google News) for somehow "damaging" their business because they link to stories with snippets, and then send traffic to those newspaper websites. We've spent years talking about how it's weird to complain about a giant site sending you traffic, but some old school publishers can't seem to get past the fact that Google is big and successful while their own sites are not -- and assume that means that Google somehow "stole" their revenue. In response, they've pushed ridiculous proposals to require anyone who aggregates content with links back to the original to pay a weird fee, above and beyond the traffic that they're sending.

These plans have backfired pretty much everywhere they've been tried. Because it's nonsensical to charge someone to send you more traffic, aggregators have done things like removing those publishers or removing snippets only to see howls of protest from those same publishers who previously claimed that such things were "stealing." In the most extreme case, in Spain, where a law was written that made it mandatory for such a link tax, Google News shut down completely -- once again leading to howls of protest from the newspapers who previously had been arguing that Google was somehow stealing from them. It's an odd sort of "stealing" where you'd run complaining to the government when it goes away.

Either way, all this leads to a silly and nonsensical resolution from MEP Angelika Niebler, working with a number of German MEPs (Germany is where the strongest push for a link tax has come from), arguing for a special new copyright right, which it claims is about supporting journalism:

Calls on the Commission to evaluate and come forward with a proposal on how quality journalism can be preserved, even in the digital age, in order to guarantee media pluralism, in particular taking into account the important role journalists, authors and media providers such as press publishers play with regard thereto

While not directly calling for a link tax (which Niebler had pushed in an earlier amendment that had been rejected), it's a pretty obvious attempt to open the door for such a link tax to return in the near future. In the link above, MEP Julia Reda notes that Niebler's own party, the European People's Party (EPP) had already agreed that no more amendments would be added -- but Niebler went ahead and added it anyway.

The good folks at OpenMedia are vocally opposing this amendment and have set up a site at SaveTheLink.org with more information. The EU Parliament will vote on this proposal tomorrow. While it won't determine what the eventual law is, it may help guide dangerous future proposals that could have serious consequences for how the internet works (or doesn't) in Europe.

It's time for major publishers to get over the fact that they've failed to innovate and failed to keep up with the way the internet works, while others have stepped in and done a better job. Blaming others for your failures is one thing. Looking to the government to change the way the internet and free expression work, just to try to squeeze money out of the companies who did innovate, is a cynical and backwards looking move. EU citizens and their elected officials should not allow it to happen.

Filed Under: ancillary tax, angelika niebler, eu, europe, google tax, journalism, julia reda, link tax, media, snippet tax

UK Publishers Don't See Why Anyone's Complaining About Copyright Law

from the because-they're-paid-not-to-understand dept

As the copyright reform effort is underway in Europe, a number of legacy players are running a bit scared. The UK Publishers Association published a rather amusing attempt at "mythbusting" claims that reformers are making about copyright. Nate Hoffelder over at The Digital Reader does a nice job showing how many of the Publishers Association's claims are complete bunk, and clearly influenced by what's in the publishers' best interests, rather than anyone else's -- but that's to be expected. They're there to represent a position -- and rather than take a long-term view, recognizing that what's best for the public long-term will be best for the publishers as well, they take the short-term, protectionist, anti-consumer view. Because that's what these silly trade groups think they should do.

The document was released with a weird nonsensical statement from Richard Mollet, the head of the Publishers Association:

“It is time to debunk the long-pedalled myth that copyright is an obstacle to growth in the digital economy.

“When you look at the success of publishing and other creative industries in developing online products and services it is palpably untrue – copyright is the means by which the digital economy functions, allowing works to be made available to consumers and rewarding creators and the companies which invest in them.

“In order to undermine copyright, people often wrongly cite it as the source of problems in the digital single market; or, they falsely claim not to be able to do things which actually they can. Also, we often hear people propose that copyright is a block to them doing things which would be unfair and damaging to authors and publishers.

It is no myth that copyright has been an obstacle for many businesses. To claim otherwise is just laughable. An intellectually honest argument would admit that copyright law clearly benefits some parties and harms others. The policy questions we should be arguing are about who is helped and who is harmed and what's best overall for society and culture. But, the Publishers Association doesn't even want to give an inch and can't even admit that some innovators are clearly held back by today's copyright law.

The last paragraph really gets at the crux of the full document they posted, because the summary is basically "people are upset about this thing they can't do -- but they can do it if only they pay us lots of money." That's basically the argument behind nearly all of the "myths" the document "busts."

First, it claims that the idea that Europe needs a "single digital market" is bunk because you can just license everything in different regions with today's law:

Copyright is delivering a digital single market. The ability of publishers to simultaneously license works across the EU – and in many cases the world – derives from the current copyright framework.

Then they mock the idea that text and data mining uses are blocked under copyright law... because, again, they can just license:

The market-based licence solutions can be tailored to the needs of different researchers and enable publishers to check bona fides and ensure the integrity of the content platform.

How about students being unable to access resources across borders? No problem, the publishers claim, we have a license for that!

The licences under which publishers provide universities with material do permit students to access course materials from anywhere in the EU (and very often the world).

Okay, what about teachers looking for resources from other countries? Well, the Publishers insist, no one really wants that anyway, and if they did, well, there's a license for that:

There is no effective demand for this. In both the primary and secondary school markets textbooks and other resources are produced explicitly to assist the delivery of each member state’s curriculum. As such the supply and demand for such materials is highly country-specific and cross-border requirements are minimal. Should there be such a demand (for example, if a school in France was teaching the English curriculum) then these materials can easily be sourced and a licence secured.

What about libraries lending ebooks? Guess what? The publishers say you can license that as well:

A variety of agreements between authors, publishers and libraries are in place across the EU which are giving rise to thriving models of e-book lending. The licences underpinning these models help ensure that authors are rewarded when their works are enjoyed, and ensures that authors are willing for their works to be borrowed in this way.

Yeah, but that's not how regular libraries work at all -- and that model kinda worked pretty damn well for a long time. Libraries didn't have to pay royalties every time someone checked out a book. Changing up that model may make publishers happy, but it makes life more difficult for everyone else.

In short, the Publishers insist, don't reform copyright law because as long as you give the publishers enough money, they'll let you do what you want. This isn't just tone deaf, it totally misses the point. It's an argument for permission-based learning and permission-based culture. It shows no recognition of how actual education and learning occurs. It shows no recognition of the power of being able to research and learn from a variety of sources. It shows no understanding of the ridiculous prices these publishers often like to charge for many of these "licensed" solutions -- and the simple fact that they will often hold back these licenses.

And, most importantly, it shows no recognition of the fact that requiring different licenses in every region is a massive waste of resources and efficiency. But the publishers don't care because that inefficiency is where they make money.

The other "myths" are just as laughable and can basically be summed up as "this is a myth because we don't like that idea." For example, they hate the idea of "exceptions" to copyright law being "harmonized" because it might mean some countries that have overly aggressive rights might lose those. Notice that the following gives not even the slightest nod of interest to the rights of the public.

Fully harmonising exceptions so that the same rules are mandated across the EU will be hugely disruptive and would result in some creators being deprived of rights. There are different legal traditions across the EU with long-established precedents in place (for example, in France there is a much stronger protection of the author’s moral rights). Variations in copyright law, within the over-arching framework of the Directive, are currently permitted in order to recognise these inherent cultural and legal differences. Imposing a single order on the whole of the EU’s creators would almost inevitably cause some to have their rights eroded.

Yes, that's the point. There's a tradeoff here, and people are arguing that giving the public slightly more rights to works can actually help culture overall. Yes, some artists might lose some currently granted "rights" to block people, but that doesn't mean those artists are harmed. It just changes the marketplace somewhat, and likely will help expand it by simplifying rules across a much larger territory.

The list also trots out the usual talking points by those who are against fair use in other countries -- claiming that even though the US has it, it would somehow totally upend the legal systems anywhere else:

The introduction of Fair Use would be highly disruptive and expensive for creators and consumers. There is no established basis in European law for the concept of “fair use”, whereas in the US it has been fine-tuned over 170 years of established legal precedents. Simply introducing the concept into EU law would presage a great number of legal cases, with associated high legal costs, as the market – and judges – came to an agreement as to what the terms allowed and precluded. Since there is no evidence that the present system is in need of radical reform, introducing Fair Use would be an unnecessary and damaging step, and one which would have limited application given that international rules on copyright, such as the Three Step Test, would still apply.

Way to sell Europe short, Publishers. It is entirely possible to implement a fair use system today. Arguing that it cannot be done is clearly hogwash. In fact, all that case law in the US should actually help the EU to develop a better fair use system, since many of the questions have already been debated and answered and the EU can draft accordingly.

We'll close with the final one, because it's just so insane and so ridiculous:

MYTH #10 An ebook is the same as a normal book and therefore I should be able to resell it

It is not the same. Physical and digital books have very different properties and so require different treatments as regards the ability to re-sell them. An ebook is easier to copy and digital copies are identical clones of the original work meaning that second-hand goods are largely indistinguishable from the original; they can be reproduced indefinitely without any loss of quality. They can also be circulated widely without control but even introducing a “forward and delete” function would not provide effective protection given the ease with which such measures can be circumvented. It is clear that the existence of a market for second hand digital copies will destroy the primary market for authors and publishers.

Of course, as Nate wrote in his piece, if that were true, piracy would have already eroded the book market entirely, but it hasn't. Either way, the Publishers' position on ebooks appears to be: (1) we get paid many times for the same book and (2) we block you from reselling it. In short, they're focused on taking away value from ebooks, to make them even less valuable than regular books.

Filed Under: copyright, digital single market, eu, europe, licensing, myths, publishers, single market, uk
Companies: uk publishers association

EU Court Lawyer Advises Against Granting Trademark For Kit Kat Shape

from the trademark-barred dept

There's apparently something of a chocolate war going on in Europe, where rival confectioneries all go around trying to trademark silly aspects of their products while everyone else blocks them. Cadbury reportedly kicked all this off some years back, attempting to trademark the color purple (seriously), before Nestle came in and objected, getting the trademark overturned. The most recent edition of this sweet-war is Nestle's consternation over not being able to trademark the Kit Kat bar's four-bar shape.

This probably requires some brief background. See, the UK is the birth-place of the Kit Kat bar. Back in 2013, Nestle decided that the candy had developed a distinction through its shape such that the four-bar shape deserved its own trademark (there was no attempt made on the two-bar fun-sized version). Nestle initially went to the Office of Harmonization of the Internal Market (OHIM), which essentially assigns trademarks for the EU, in 2012. But in 2013, the UK declined to confer a trademark on the Kit Kat shape. The reason for declining was that four bars of chocolate weren't a distinct enough thing to warrant its own mark.

Cadbury is the one objecting to the Kit Kat shape trademark and they've kept up the pressure, despite Nestle's appeals. The latest development is likely the penultimate nail in this issue's coffin, however.

Confectionery giant Nestle's attempt to trademark the shape of its four-finger KitKat bar in the UK does not comply with European law, a senior European Court lawyer has said. The opinion of the advocate-general effectively ends Nestle's attempts to trademark the snack.

That's because the courts generally listen to the advocate-general on these matters, not to mention that the UK has already been predisposed to denying the trademark and the fact that every next EU entity that gets involved seems to have a different opinion likely means the UK courts will simply affirm the denial of the trademark.

Now, it's perhaps worth noting that we, the Techdirt staff, have had some discussions about this case previously and there's been some disagreement about it. Some of us think that the Kit Kat shape is indeed distinct enough to warrant a mark. Others, including myself, do not. My reason is pretty simple: I tend to see trademark as chiefly a way to keep consumers from buying one product when they had intended to buy another. With that in mind, I've never heard of anyone buying a Kit Kat bar outside of the wrapper that covers up the shape, so I think the idea of getting a trademark on the shape is kind of dumb. That said, I should note the UK court didn't take to that line of thinking, asserting only a lack of distinction in the shape.

Filed Under: europe, kit kat, shape, trademark
Companies: nestle

Huge Loss For Free Speech In Europe: Human Rights Court Says Sites Liable For User Comments

from the this-is-big-and-dangerous dept

Last year we wrote about a very dangerous case going to the European Court of Human Rights: Delfi AS v. Estonia, which threatened free expression across Europe. Today, the ruling came out and it's a disaster. In short, websites can be declared liable for things people post in comments. As we explained last year, the details of the case were absolutely crazy. The court had found that even if a website took down comments after people complained, it could still be held liable because it should have anticipated bad comments in the first place. Seriously. In this case, the website had published what everyone agrees was a "balanced" article about "a matter of public interest" but that the website publisher should have known that people would post nasty comments, and therefore, even though it automated a system to remove comments that people complained about, it was still liable for the complaints.

The European Court of Human Rights agreed to rehear the case, and we hoped for a better outcome this time around -- but those hopes have been dashed. The ruling is terrible through and through. First off, it insists that the comments on the news story were clearly "hate speech" and that, as such, "did not require any linguistic or legal analysis since the remarks were on their face manifestly unlawful." To the court, this means that it's obvious such comments should have been censored straight out. That's troubling for a whole host of reasons at the outset, and highlights the problematic views of expressive freedom in Europe. Even worse, however, the Court then notes that freedom of expression is "interfered with" by this ruling, but it doesn't seem to care -- saying that it is deemed "necessary in a democratic society."

Think about that for a second.

The Court tries to play down the impact of this ruling, by saying it doesn't apply to any open forum, but does apply here because Delfi was a giant news portal, and thus (1) had the ability to check with lawyers about this and (2) was publishing the story and opening it up for comments.

The rest of the ruling is... horrific. It keeps going back to this "hate speech" v. "free speech" dichotomy as if it's obvious, and even tries to balance the "right to protection of reputation" against the right of freedom of expression. In other words, it's the kind of ridiculous ruling that will make true free expression advocates scream.

When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8

And the court insists that the two things -- reputation protection and free speech "deserve equal respect." That's bullshit, frankly. The whole concept of a right to a reputation makes no sense at all. Your reputation is based on what people think of you. You have no control over what other people think. You can certainly control your own actions, but what people think of you?

The court sets up a series of areas to explore in determining if Defli should be held liable for those comments. In the US, thanks to Section 230 of the CDA, we already know the answer here would be "hell no." But without a Section 230 in Europe -- and with the bizarre ideas mentioned above -- things get tricky quickly. So even though the court readily agrees that the article Defli published "was a balanced one, contained no offensive language and gave rise to no arguments about unlawful statements" it still puts the liability on Delfi. Because the site wanted comments. It actually argues that because Delfi is a professional site and thus comments convey economic advantage, Delfi is liable:

As regards the context of the comments, the Court accepts that the news article about the ferry company, published on the Delfi news portal, was a balanced one, contained no offensive language and gave rise to no arguments about unlawful statements in the domestic proceedings. The Court is aware that even such a balanced article on a seemingly neutral topic may provoke fierce discussions on the Internet. Furthermore, it attaches particular weight, in this context, to the nature of the Delfi news portal. It reiterates that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. The Court observes that the Supreme Court explicitly referred to the fact that the applicant company had integrated the comment environment into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions (comments). According to the findings of the Supreme Court, in the comment environment, the applicant company actively called for comments on the news items appearing on the portal. The number of visits to the applicant company’s portal depended on the number of comments; the revenue earned from advertisements published on the portal, in turn, depended on the number of visits. Thus, the Supreme Court concluded that the applicant company had an economic interest in the posting of comments. In the view of the Supreme Court, the fact that the applicant company was not the writer of the comments did not mean that it had no control over the comment environment...

Also? Having "rules" posted for comments somehow increases the site's liability, rather than lessens it as any sane person would expect:

The Court also notes in this regard that the “Rules of comment” on the Delfi website stated that the applicant company prohibited the posting of comments that were without substance and/or off-topic, were contrary to good practice, contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities. Such comments could be removed and their authors’ ability to post comments could be restricted. Furthermore, the actual authors of the comments could not modify or delete their comments once they were posted on the applicant company’s news portal – only the applicant company had the technical means to do this. In the light of the above and the Supreme Court’s reasoning, the Court agrees with the Chamber’s finding that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal.

Yes, that's right. They get in more trouble for posting rules saying behave. It's incredible.

The next key finding: because commenters are anonymous and anonymity is important -- and because it's difficult to identify anonymous commenters -- well, fuck it, just put the liability on the site instead. That really does seem to be the reasoning:

According to the Supreme Court’s judgment in the present case, the injured person had the choice of bringing a claim against the applicant company or the authors of the comments. The Court considers that the uncertain effectiveness of measures allowing the identity of the authors of the comments to be established, coupled with the lack of instruments put in place by the applicant company for the same purpose with a view to making it possible for a victim of hate speech to effectively bring a claim against the authors of the comments, are factors that support a finding that the Supreme Court based its judgment on relevant and sufficient grounds. The Court also refers, in this context, to the Krone Verlag (no. 4) judgment, where it found that shifting the risk of the defamed person obtaining redress in defamation proceedings to the media company, which was usually in a better financial position than the defamer, was not as such a disproportionate interference with the media company’s right to freedom of expression....

Further on the question of liability, the court finds that because Delfi's filter wasn't good enough, that exposes it to more liability. I wish I were making this up.

Thus, the Court notes that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties. Nevertheless, and more importantly, the automatic word-based filter used by the applicant company failed to filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments. The Court reiterates that the majority of the words and expressions in question did not include sophisticated metaphors or contain hidden meanings or subtle threats. They were manifest expressions of hatred and blatant threats to the physical integrity of L. Thus, even if the automatic word-based filter may have been useful in some instances, the facts of the present case demonstrate that it was insufficient for detecting comments whose content did not constitute protected speech under Article 10 of the Convention.... The Court notes that as a consequence of this failure of the filtering mechanism, such clearly unlawful comments remained online for six weeks....

Then the court says that because the "victims" of "hate speech" can't police the interwebs, clearly it should be the big companies' responsibility instead:

Moreover, depending on the circumstances, there may be no identifiable individual victim, for example in some cases of hate speech directed against a group of persons or speech directly inciting violence of the type manifested in several of the comments in the present case. In cases where an individual victim exists, he or she may be prevented from notifying an Internet service provider of the alleged violation of his or her rights. The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments.

Finally, the court says that since the company has stayed in business and is still publishing, despite the earlier ruling, it proves that this ruling is no big deal for free speech.

The Court also observes that it does not appear that the applicant company had to change its business model as a result of the domestic proceedings. According to the information available, the Delfi news portal has continued to be one of Estonia’s largest Internet publications and by far the most popular for posting comments, the number of which has continued to increase. Anonymous comments – now existing alongside the possibility of posting registered comments, which are displayed to readers first – are still predominant and the applicant company has set up a team of moderators carrying out follow-up moderation of comments posted on the portal (see paragraphs 32 and 83 above). In these circumstances, the Court cannot conclude that the interference with the applicant company’s freedom of expression was disproportionate on that account either.

The ruling is about as bad as you can imagine. It is absolutely going to chill free expression across Europe. Things are a bit confusing because the EU Court of Justice has actually been much more concerned about issues of intermediary liability, and this ruling contradicts some of those rulings, but since the two courts are separate and not even part of the same system, it's not clear what jurisdiction prevails. It is quite likely, however, that many will seize upon this European Court of Human Rights ruling to go after many websites that allow comments and free expression in an attempt to block it. It is going to force many sites to either shut down open comments, curtail forums or moderate them much more seriously.

For a Europe that is supposedly trying to build up a bigger internet industry, this ruling is a complete disaster, considering just how much internet innovation is based on enabling and allowing free expression.

There is a dissenting opinion from two judges on the court, who note the "collateral censorship" that is likely to occur out of all of this.

In this judgment the Court has approved a liability system that imposes a requirement of constructive knowledge on active Internet intermediaries (that is, hosts who provide their own content and open their intermediary services for third parties to comment on that content). We find the potential consequences of this standard troubling. The consequences are easy to foresee. For the sake of preventing defamation of all kinds, and perhaps all “illegal” activities, all comments will have to be monitored from the moment they are posted. As a consequence, active intermediaries and blog operators will have considerable incentives to discontinue offering a comments feature, and the fear of liability may lead to additional self-censorship by operators. This is an invitation to self-censorship at its worst.

It further notes how this works -- in such a simple manner it's disturbing that the court didn't get it:

Governments may not always be directly censoring expression, but by putting pressure and imposing liability on those who control the technological infrastructure (ISPs, etc.), they create an environment in which collateral or private-party censorship is the inevitable result. Collateral censorship “occurs when the state holds one private party A liable for the speech of another private party B, and A has the power to block, censor, or otherwise control access to B’s speech”. Because A is liable for someone else’s speech, A has strong incentives to over-censor, to limit access, and to deny B’s ability to communicate using the platform that A controls. In effect, the fear of liability causes A to impose prior restraints on B’s speech and to stifle even protected speech. “What looks like a problem from the standpoint of free expression ... may look like an opportunity from the standpoint of governments that cannot easily locate anonymous speakers and want to ensure that harmful or illegal speech does not propagate.” These technological tools for reviewing content before it is communicated online lead (among other things) to: deliberate overbreadth; limited procedural protections (the action is taken outside the context of a trial); and shifting of the burden of error costs (the entity in charge of filtering will err on the side of protecting its own liability, rather than protecting freedom of expression).

It's disappointing they were unable to convince their colleagues on this issue. This ruling is going to cause serious problems in Europe.

Filed Under: cda 230, comments, defamation, estonia, europe, european court of human rights, free expression, free speech, hate speech, intermediary liability, liability, moderating comments, secondary liability
Companies: delfi

European Mobile Networks Plan To Block Ads, Not For Your Safety, But To Mess With Google

from the this-is-really-dumb dept

So things just keep getting stranger and stranger online. A bunch of mobile operators are apparently planning to start automatically blocking all mobile ads. Now, for those of you who hate ads online, this might seem like a good thing, but it is not. If you want to disable ads on your own, that should be your call. In fact, as we've noted before, we think people on the web have every right to install their own ad blockers, and we find it ridiculous when people argue that ad blocking is some form of "theft."

But this is different... and this is dangerous.

As the reports make clear, this move has nothing to do with actually protecting the public from malicious or annoying ads... and everything to do with the mobile operators hoping to shake down Google.

The plan – which would be devastating to companies reliant on advertising – is not limited to a single European network. Its apparent aim is to break Google’s hold on advertising.

The FT report says that “an executive at a European carrier confirmed that it and several of its peers are planning to start blocking adverts this year” and will be available as an “opt-in service” however they are also considering applying the technology across their entire mobile networks.

And, the clear plan is to then go to Google and say "give us money or else":

The unnamed European carrier in the Financial Times article is reportedly planning to target Google and block its ads to force the company into giving up some of its revenue.

The companies are using a product called Shine, which has a big bullshit claim on its page that it "champions the consumer's rights to control mobile ads." If that were the case it would be offering the tool to consumers. It's not. It's selling to big service providers, and then letting those service providers spy on all of your surfing in order to remove the ads.

This should be a serious concern for anyone using a service that signs up for Shine. Even if it's an "opt-in" offering, what the company is really doing is a form of deep packet inspection and blocking your mobile internet from acting the way it should. In other words, this looks like a net neutrality violation on a large scale.

As we've pointed out in the past, the broadband providers aren't stupid. They know that if they go for a direct plan of blocking or degrading apps you like, it gets people angry. So they look for ways to break net neutrality that look like they're doing the consumer favors -- things like zero rating, and now this. But that's not what's happening at all. This is all just the exact same plan as many broadband providers have had for years: figure out a way to pressure Google into coughing up some of its revenue, not by earning it, but by creating a mess for the company.

And, in the process, it's causing a mess for users by mucking with their internet connections, doing deep packet inspection, and blocking content.

Filed Under: ad blocking, europe, mobile ads, net neutrality
Companies: google, shine

European Court To Explore If Linking To Infringing Material Is Infringing

from the again dept

A couple of years ago in the Svensson case, the European Court of Justice (CJEU) made it clear (finally) that merely linking to content is not infringement. That was a case involving a news aggregator linking to official sources. However, in a new case that has been referred to the CJEU, the court will examine if links to unauthorized versions of content is infringing as well. The excellent IPKat has the details of the case which involves a blog that linked to some pre-publication Playboy photos in the Netherlands. A lower court had said that it wasn't copyright infringement, but still broke the law, by facilitating access. On appeal, the court found that the free speech concerns outweighed the copyright concerns. From the description by the lawyer representing the blogger ("Geen Stijl news"):

We lodged an appeal on behalf of Geen Stijl on a few grounds which was successful: the Court of Appeal had misapplied the 'quotation' exception in copyright law and did not sufficiently balance the freedom of speech versus copyright protection, as it indicated that 'only in exceptional circumstances' would the freedom of speech outweigh copyright protection, as freedom of speech concerns are taken into account in the law, in particular in the exceptions. The Supreme Court followed our reasoning that copyright is a fundamental right, but that the same goes for the freedom of speech, and that they thus should be considered on equal footing. The Court of Appeal should therefore have considered all relevant circumstances (among which is whether this is commercial speech or a news item) and not only exceptional circumstances. Never before has the freedom of speech been given so much weight in The Netherlands.

That's the good news. On the flip side, Sanoma, the Dutch publisher of Playboy, has appealed on its own, and that's the question that is going to the CJEU. It basically asks how to apply that earlier ruling saying linking is not infringing to a case in which the content being linked to is not authorized -- and whether it matters if the linker knew or should have known the content was infringing.

Given the scenario, this could become a rather important copyright case in Europe, considering how frequently people may end up linking to content that may be infringing.

Filed Under: cjeu, copyright, deep linking, eucj, europe, european court of justice, geen stijl, infringement, linking, playboy, svensson
Companies: geen stijl, playboy, sanoma