5 5 May 2003

News:

The battle against spam has been given a new intensity with the US State of Virginia passing legislation that could lead to senders of unsolicited e-mails facing up to five year prison sentences. The new anti-spam provisions of the Virginia Computer Crimes Act, which comes into force on July 1, makes large scale spamming a class 6 felony in Virginia, which carries a prison term of between one and five years and a fine. Prosecutors and the Attorney General will also be authorized to seize profits, computer equipment and all property connected with the spamming crime

US District Judge Stephen Wilson last month rejected music and film industry motions for Summary Judgement against P2P file sharing companies Grockster Ltd and Streamcast Networks and called for Congress to legislate on the issues that have been raised.

The UK Department of Culture Media and Sport has indicated that the Government will not ‘operate a black list’ of countries from where ( UK regulated operators) are unable to accept customers’.

Features:

The judgement by US District Justice Stephen Wilson in last month’s P2P case involving the entertainment industry and Grockster Ltd and Streamcast Networks makes interesting reading.

His unwillingness, as he put it, ‘to expand existing copyright law beyond its well-drawn boundaries’, might not have been great news for the industry but was a welcome reminder that some of these issues involve public policy issues that requires input from the public and their political representatives.

Traditionally, sports rights owners have exploited their position by selling all broadcasting rights in an event to one single exclusive broadcaster. The emergence of new technologies creates the opportunity for rights holders to obtain better value and exposure for their premium content and their sponsors, by separating their rights into various packages, each tailored for the individual method of transmission.

Sport is regarded as “premium content”. This is exemplified by the recent prices for Premier League exclusive broadcasting rights. BSkyB successfully used the Premiership as a “battering ram” to force satellite pay-tv into consumers’ homes paying £304m in 1992 for a five year deal, £670m in 1996 for a four year deal and £1.1 billion in 2001 for the current 3 year deal expiring at the end of this season. Operators of new platforms are seeking to replicate the BSkyB model using sport to entice consumers into the world of new technology. In June 2001 Hutchison 3G paid an estimated £35m in a deal with the Premier League to provide football news and clips via mobile telephones until the end of the current season.

This article examines the differences between sports content and other types of content and some of the key legal issues to be considered when seeking to exploit these rights across different media platforms.

As it becomes essential for businesses to have an effective internet presence to compete in the global market, so it becomes fundamental for those businesses to protect their brands and to be more vigilant about preventing unauthorised use of their trademarks online.

This article focuses on how the UK courts have applied traditional trademark laws to tackle the issue of unauthorised use of trademarks online and how they are likely to deal with the issue of jurisdiction when faced with unauthorised use of a trademark on a globally accessible website. The article will briefly also touch on the more practical aspect of how to monitor and try to prevent in the first place unauthorised third party use of a brand owner’s trademark.

1 July 2003 is approaching fast. This is the date on which the much criticised changes to the VAT charge on digital products supplied from outside the EU, (see e-commercelaw&policy, Volume 4, Issue 10) will take effect. The new rules, implementing the EU Directive on VAT and e-commerce, require non EU businesses selling ‘digital products’ to private customers in the EU to collect VAT on transactions concerning ‘digital products’. B2B transactions remain unaffected.

This article sets out a brief overview of the proposed changes and a more detailed discussion of the recent guidance produced by H M Customs and Excise on the following subjects:

What is meant by ‘digital products’; and How suppliers of digital products should identify the status and location of their customers?

In IT contracts1 liability is a key concern for both parties. Unlike many other contracts, where the goods supplied may be of high cost but low commercial value, potential damages arising from defective or inappropriate software will usually by far exceed the contract pricei. A supplier will usually seek to restrict implied terms and conditions as to quality and fitness for purpose and to cap their own liability at, for example, a percentage of or all monies paid under the contract. However, in the UK there are problems with seeking to do this on a standard form basis. Complex and inter-related case law and legislation has the effect of ensuring that IT suppliers can never be completely certain of the quantum of liability under an IT contract. This article attempts to avoid any legal uncertainty when drafting IT contracts.

Commentators often talk about internet fraud as something new, in fact, the internet can be viewed as simply another medium in which to commit the same crimes as in the physical world, different only in the fact that it might allow for quicker and cheaper means of accessing a wider range of targets.