Draconian Law for Dummies

 Δράκων (Drakōn or Draco) was a Greek legislator who was notorious for his severe laws. He lived in the 7^th century BCE. He wrote laws that replaced both oral law and blood feud. As the first constitution of Athens, it could also only be enforced by a court. For the lawyers among you, the code also made a difference between murder and involuntary manslaughter. To make sure that all citizens were informed about the new laws, they were published on wooden tablets and on steles.

The laws were particularly harsh. For example, any debtor whose status was lower than that of his creditor was forced into slavery. The punishment was more lenient for those owing debt to a member of a lower class. The death penalty was the punishment for even minor offences.

The liberal use of the death penalty under Draconic code made Plutarch comment: "It is said that Draco himself, when asked why he had fixed the punishment of death for most offences, answered that he considered these lesser crimes to deserve it, and he had no greater punishment for more important ones."

Solon repealed Draconian law in the early 6th century BCE. The only exception was homicide law. Draconian law was the first legislation making a distinction between homicide and involuntarilyhomicide.

Currently, people refer to Draconian when a certain law or regulation is especially harsh, such as the recentone in Russia.

Solomon’s Verdict on Red Shoe Soles

As I discussed in a previous post, red soles have been a hot issue to patent.

Christian Louboutin is well known for his classic red soles, and has a faithful following of women coveting his footwear. Louboutin had filed a case against Yves Saint Laurent in April 2011. A federal court has now pronounced that the French shoemaker Christian Louboutin SA can trademark its red soles.

Originally, the red soles had taken a secondary meaning and was considered to be symbolic to the brand itself. The U.S. Court of Appeals for the Second Circuit has now ruled in the favor of Louboutin.

The court limited the brand's trademark to footwear where the red sole contrasts with the color of the r
est of the shoe. This basically prevents competitors that are using a red sole, such as the YSL, to use a red sole,  but leaves open the possibility of e.g., having a red heel that would contrast to the rest of the shoe.

Furthermore, as YSL quite correctly pointed out, its s monochromatic red shoes do not infringe any trademark rights of Louboutin. YSL can therefore continue to make monochromatic shoes in a wide variety of colors, including red. David H. Bernstein of Debevoise & Plimpton LLP, YSL's rep on the case, stated:"YSL will continue to produce monochromatic shoes with red outsoles, as it has done since the 1970s."

A true Solomon’s verdict!

Australia’s High Court Upholds Cigarette Promotion Law


Australia's highest court upheld the world's toughest law on cigarette promotion despite protests from tobacco companies.

Cigarette companies had been arguing that the value of their trademarks will be destroyed under the new rules.

These rules demand that all cigarette packs are stripped of all logos and company colors.

The decision by the High Court means that starting December 2012, tobacco companies are prohibited from displaying their distinctive colors, brand designs and logos on their cigarette packs. The packs will instead come in a uniformly unglamorous design.

Furthermore, they will feature graphic health warnings and graphic images of cancer-riddled mouths and blinded eyeballs.

This way, the Australian government hopes that the new packs will make smoking as unglamorous as possible.

What do you think? Will be successful and should other countries follow?

The whistle-blower of the Amsterdam Hospital VUmc is fighting back in court

It all started with the surgeons of the department Lung Surgery Department in the University Hospital VUmc quarreling. It went to such an extent that it endangered the safety of patients.

Piet Postmus MD, a residing lung surgeon, was so concerned, that he became a whistle-blower and informed the Supervisory Board as well as the Inspection of National Health.

The latter confirmed that the management of the Hospital had withheld crucial information and started monitoring the VUmc. The Hospital will enjoy unannounced checks during the coming 6 months. Even Minister Schippers of National Health Care labeled the situation at the Hospital as “unacceptable”.

However, the Board (and management) did not see any reason to resign, since matters could be solved internally. They also were taking measures - the first being to suspend (and fire) the whistle-blower Postmus.

He promptly turned to the courts, demanding that he will be able to resume working. Pending the court’s decision about his firing, he hopes that the two new members of the Board will have a fresh perspective of what was and is going on in the Hospital.

Postmus is getting more and more support from his colleagues, former colleagues and medical personnel. There is even a dedicated website to support Postmus, who is also a Professor Lung Diseases.

It will be interesting to see how the court will decide.

(Photo courtesy of Hollandse Hoogte / Peter Hilz)

Columnist and TV host Fareed Zakaria admits to copying parts of Lepore’s article

Again, a famous columnist admitted of copying someone else’s writings. FareedZakaria is a Washington Post columnist, TV host of CNN’s foreign affairs show GPS, as well as an editor-at-large at Time.

Mr. Zakaria has apologized for using several paragraphs in his column in Time magazine that were written by another writer saying that he made "a terrible mistake. It is a serious lapse and one that is entirely my fault." As a result, his column has been suspended for a month.

In a separate statement, Time spokesman Ali Zelenko said the magazine accepts Zakaria's apology, but would suspend his column for one month "pending further review."

He stated: "what he did violates our own standards for our columnists, which is that their work must not only be factual but original. Their views must not only be their own but their words as well.

Media reporters noticed that passages in Zakaria's column about gun control that appeared in Time's issue 20 of August issue closely resembled paragraphs in an article written by Harvard University history professor Jill Lepore. Her assay was published in the April 2012 issue of The New Yorker magazine.

Zakaria's column "The Case for Gun Control" starts with a paragraph containing the following text: “Adam Winkler, a professor of constitutional law at UCLA, documents the actual history in 'Gunfight: The Battle Over the Right to Bear Arms in America.' Guns were regulated in the U.S. from the earliest years of the Republic."

Jill Lenore's New Yorker "Battleground America" assay starts with: "As Adam Winkler, a constitutional-law scholar at U.C.L.A. demonstrates in a remarkably nuanced new book, 'Gunfight: The Battle Over the Right to Bear Arms in America,' firearms have been regulated in the United States from the start."

In his statement, Zakaria "unreservedly" apologized to Jill Lepore, the Time’s editors and his readers.

Was it enough? Obviously, since both Time and CNN have reinstated Fareed Zakaria after consulting their plagiarism investigation, stating that it was "an unintentional and an isolated incident".

Yeah, sure, and I am a supermodel!

(Image courtesy of TalkoftheTown)

Microsoft’s European Legal Problem

On every PC sold in the U.S., Internet Explorer is the default Web browser. According to the European Commission, this is unacceptable, and wants Microsoft (MSFT) to display a “Browser Choice Screen” (BCS) on every copy of Windows that has Internet Explorer set as the default browser.

Microsoft has announced that it found out that the BCS wasn’t showing up on some computers. They were able to pinpoint the problem to a fluke within Windows 7 SP1. When using regular Windows 7, Vista or XP the BCS should pop up when Internet Explorer is set as the default browser. Microsoft is taking steps to avoid paying (even more) fines to the EU.

For starters, Microsoft developed a quick fix and distributed it on July 3 to all Windows PCs running Windows 7 SP1. Microsoft also made sure that the BCS was available on all new Windows PCs shipped with Windows 7 SP1.

Microsoft also hired an outside investigation company to interview Microsoft employees about the problem. Getting to the bottom of this compliance issue is paramount. Microsoft will send the findings to the European Commission. This way, the Company hopes to avoid a fine.

Microsoft is extending the time in which they must display the BCS by 15 months for all PC users. The company rusts that this should pacify the European Commission.

Microsoft identified the cause of the problem. Its engineers were unaware that they had to update the BCS code for Windows 7 SP1. If Microsoft is found that they intentionally didn’t add the BCS, they could face up to $7 billion in fines.

Let’s wait and see....

About Plagiarism

In Roman times the author Marcus Valerius Martialis (40–102 BCE and) realized that it was bad for his business to be copied by others without being given credit.

He launched a campaign to denounce what he considered to be literary thieves. He coined the phrase plagiārius (kidnapper, someone who ensnares children or slaves in a plaga or net). Since copyright law did not exist yet, and there was also no other legal recourse open to him, he came up with a clever idea.

Being known for his acid stylus, he put his writing skills to good use. He wrote several verses aimed at copycats.

One that survived is a wonderful quip about Fidentinus, whom he perceived at being a plagiarist.

“Fame has it that you, Fidentinus, recite my books to the crowd as if none other than your own. If you’re willing that they be called mine, I’ll send you the poems for free.
If you want them to be called yours, buy this one, so that they won’t be mine.”

Nowadays, plagiarism is a criminal offense that will also ostracize an author. Some famous examples include:

• Alex Haley settled a 1977 lawsuit with Harold Courlander that cited approximately 80 passages in Haley's novel Roots (1976) as having been plagiarized from Courlander's novel The African (1967)
  

• Kaavya Viswanathan's first novel How Opal Mehta Got Kissed, Got Wild and Got a Life is reported to contain plagiarized passages from at least five other novels. All editions of the book were subsequently withdrawn, her publishing deal with Little, Brown and Co. was rescinded, and a film deal with Dreamworks SKG was canceled.

• Paul Crouch, the televangelist founder of the Trinity Broadcasting Network, was sued in 2000 by novelist Sylvia Fleener. She claimed that Crouch's novel The Omega Code was plagiarized from her unpublished manuscript, The Omega Syndrome. Crouch and Fleener's attorneys reached an out-of-court settlement for an undisclosed sum.
  
  
• In 2007 at the age of 12, Marie-Pier Côté, a Canadian, published a novel titled Laura l'immortelle.The author later admitted that she plagiarized a Highlander fan fiction, rewrote it, and presented it as an original work.

• In December 2011, Naomi Ragen was convicted of using parts of Sarah Shapiro's 1990 book “Growing with My Children: A Jewish Mother’s Diary” in her book "Sotah," which appeared in 1992. In addition to levying damages, as well as court costs and lawyer's fees, the court ordered Ragen to remove the plagiarized passages in future printings of the book.

Marks and Spencer’s copycat case – honest mistake or huge marketing blunder?

Marks & Spencer started selling a line of T-shirts featuring a floral pattern. A young textile designer, Rachael Taylor, spotted the T-shirts in the show window of M&S Oxford Street shop. She noticed the striking resemblance with her own signature design of hand-drawn flowers.

As shown in the image, the design is almost identical. Ms. Taylor never gave permission to use her design, stating: “This design is my hand drawn original and has been part of my signature collection for quite some time. It's sold on my own branded products 'Rachael Taylor Designs' from kitchen textiles through to stationery. The design has also achieved international success as a licensed design, appearing on numerous home decor products in the UK, Europe & USA.”

Marks & Spencer have withdrawn the garments from sale while it investigated the complaint. M&S emphasized that they had bought them 'in good faith' from a direct supplier. A spokesperson stated: “We are sorry for any disappointment caused to Rachael Taylor Designs from the sale of a T-shirt that we bought in good faith from a direct supplier.”

Ms. Taylor started legal action, stating: “I believe a copyright infringement has been made by Marks and Spencer from using my design and making it into a garment, then selling in their stores. Not only has my design been used for profit without my permission, I believe in standing up for the civil rights of myself and anyone else who has encountered this in their own professional life.”

In a statement, Patricia van den Akker, Director of The Design Trust, said: “I hear daily of cases like this. It really hurts these small designers, both financially and emotionally.”

Keep posted!

(Image ©Rachael Taylor Designs Ltd. as featured in the Daily Mail)

Red-heeled and Signature-soled – Christian Louboutin Lost His Trademark Infringement Case in NY

French designer Christian Louboutin is very unhappy with a recent New York Court decision. In this ruling, Judge Victor Marrero of the Southern District of New York stated that Louboutin cannot block Yves Saint Laurent from copying its distinctive red soles. The trademark that Christian Louboutin obtained in 2008 for “lacquered red soles” and used in women’s high fashion designer footwear is “overly broad” and therefore doesn’t offer protection.

The court rejected Louboutin’s request to forbid YSL from selling more red-soled shoes while the case was pending.  The judge found it unlikely that Louboutin would succeed with his claims for trademark infringement and unfair competition. 

The ruling stated that trademarks can be obtained for fashion purposes for a single color but only if the color is used in a distinct pattern or combination of shades. (E.g., Louis Vuitton’s LV monogram or Burberry’s signature beige plaid). But a fashion designer cannot claim trademark protection for a single shade such as the color red. 

Louboutin’s claim failed on two important points:

1. The precise color red is not identified in the registration
2. The trademark does not specify what type of lacquered coating would be protected and which type of  high fashion shoe.

 The judge also ruled that color is a basic element of fashion and therefore cannot be claimed exclusively by an individual designer.  “Awarding one participant in the designer shoe market a monopoly on the color red,” the court found,”would impermissibly hinder competition among other participants.” 

It would be, the court analogized, like depriving a painter from “employing a color intended to convey a basic concept because another painter, while using that shade as an expressive feature of a similar work, also staked out a claim to it as a trademark in that context.” 

The court went on to stated that if the trademark would be upheld, it would trigger endless fashion wars and hinder the legitimate competition in high fashion designer shoes. 

Louboutin is not the first one to use red in footwear. Aristocrats in the 1600s sported red-heeled shoes. A portrait of Charles II of England from 1675 shows him swearing shoes with red heels as well as red soles. Louis XIV of France made them the “it” item among Europe’s monarchs. He even issued an edict saying that only members of the nobility by birth were allowed to wear them.

Recently, red soles have brought glamor and sex appeal to footwear. Valentino Garavani  has been producing red-heeled shoes since 1969. He uses orange-like rouge that is referred to as “Valentino Red.”  In the 1970s, Yves Saint Laurent started producing the monochrome shoe, which is entirely one color — from the leather upper to the inside to the heel and the sole – in purple, blue and red. Charles Jourdan (Louboutin was his apprentice in the ’80s) also painted the soles of his shoes red. The concept is therefore far from new or innovative.

Christian Louboutin is strongly advised not the appeal. Instead, he might opt for a signature red color and trademark it as “Louboutin Red”.

How The SNOPA Bill Can Work For You

You might have heard about the SNOPA (Social Networking Online Protection Act) Bill. It addresses the issue of employers asking (potential) employees for their passwords to social media, such as Facebook.

Once passed, any prospective employer could face a $10,000 civil penalty once access to social networking accounts is asked from a (potential) employee. Schools and universities would also be banned from demanding passwords as part of disciplinary or enrollment processes.
The Bill comes hot on the heels of a series of incidents in which job candidates have been told they have to hand over passwords as part of the interview process.

As Eliot Engel, one of the Democratic Congressman who introduced SNOPA put it: “there have been countless examples of employers requiring an applicant to divulge their user name and password as part of the hiring process.”

As well as demands for passwords, this Bill would also ban “other means of accessing a private account”. This would cover demands for “friend” status.

Facebook (NASDAQ:FB) supports SNOPA. The company has threatened to sue employers who demand passwords. Facebook’s privacy chief Erin Egan stated that: “as a user, you shouldn’t be forced to share your private information and communications just to get a job. We’ll take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action.”

Unfortunately, the number of cases in the United States and elsewhere has been rising over during the past few years. When faced with the demand for divulging login details to social media, the job applicant or employee has two options: (a) to comply, or (b) to resign or withdraw from a job application. Due to the current state of the economy, taking the moral high ground is often a luxury the job seeker cannot effort…..

European employees and job applicants are faced with the same predicament as their peers across The Pond. They are also asked for their Facebook passwords by (potential) employers. According to legal experts, employers are indeed allowed to at least asking the question.
But don’t despair – legislation is kicking in soon!

Graving Pizza Leads to Arrest of Dangerous Criminal

Rick Halman is one of Holland’s most dangerous criminals, accused of brutally murdering Sven Westendorp, hardcore Ajax fan, owner of Ticket Unlimited and graffiti artist. He is also suspected of having murdered 24-jarige Bilal el H. in October last year.

After murdering Westendorp, Halman went into hiding. During a raid at one of his hideouts, police found weapons, more than 13,000 XTC pills, almost three kilo of amphetamines, and 30,000 euro. He became one of the most wanted criminals, considered to be armed and extremely dangerous.

The police had a house in Hilversum under surveillance where they expected Halman to hide out. The boys in blue observed delivery of food and dinks, but also noticed that nobody left the house.

In good “The Closer”-style, police saw a man entering the house last Friday at 1am with a pizza. The visitor left shortly after without the pizza box. Police quickly concluded that there must be another individual on the premises and raided the place. They found Halman lying on a mattress in a closed room with covered windows. He did not resist arrest.

No details about the pizza toppings was released.

Verdict of the European Court - Incest Is Prohibited

The European Court decided that the prohibition of filial love (aka incest) is legitimate. A young man from Saxony (in Germany) had filed the complaint. He sired four children by his sister; two are handicapped. He is currently serving three years of his prison sentence.

Siblings have medically speaking a high risk of begetting a handicapped child. That is also one of the reasons for the incest article in the Criminal Code. According to some lawyers, this contradicts the spirit of the law concerning equal treatment. “In such a case, it should also be forbidden for handicapped people to become offspring,” one of them stated. Really?!

For now, prohibiting sibling love is not infringing on anyone's Human Rights. As such, the young German father is correctly serving three years in jail.

The sister (and ex-lover) of the father does not want to have anything to do with her brother. “It’s OK that incest is a felony,” she said. “I don’t have any guilt. I was very young and wanted to be loved. But I would never do it again. I do not want to have to deal with my brother ever again.”

The 28-year old mother denies that she is fighting the 35-year old father for custody of their 6-year old daughter. The girl is the only of the four incest children still living with the mother.

"We only communicate via our lawyers. There are no visiting rights; he is not allowed to visit our daughter. She also does not want to see him," declared the mother. "I do not want another fight about my kids. I do not want Social Services to also take away my youngest." Her three other children are being raised by foster families.

As a lawyer and a human being, I personally applaud the decision of the European Court – not in the least for the well-being of the children....

Justice Department Is Still Going After EBook Price Fixing

The Justice Department is conducting a lengthy investigation of the agency model for ebook pricing. It has now come to a point that it is threatening to sue the "Agency Five" publishers and Apple "for allegedly colluding to raise the price of electronic books, according to people familiar with the matter."

The Justice Department believes that Apple and the publishers acted in concert to raise prices across the industry, and is prepared to sue them for violating federal antitrust laws.

Under the Sherman Act, corporations face a maximum fine of $100 million for violations. In addition, collusion among competitors may constitute violations of the mail or wire fraud statute, the false statements statute, or other federal felony statutes.

One possible solution would be to preserve the agency model but allow some discounts by booksellers. William Lynch, CEO of Barnes and Noble, is said to have that the agency model promoted a marketplace that provides consumers with choices, arguing that without it a single player (the one that can afford to lose money, using what some argue is predatory pricing) would have an even more dominant market share.

The Justice Department maintains that proving illegal price-fixing "does not require us to show that the conspirators entered into a formal written or express agreement. Price fixing, bid rigging, and other collusive agreements can be established either by direct evidence, such as the testimony of a participant, or by circumstantial evidence, such as suspicious bid patterns, travel and expense reports, telephone records, and business diary entries."

There has been tension in the interpretation of the Sherman Act ever since the Supreme Court's 2007 ruling in the Leegin Creative Leather Products case. The Court reversed almost 100 years of judicial precedent that found vertical price restraints were illegal per se, and substituted a "rule of reason" and recognized retail price maintenance can in some cases have a "procompetitive effect that are in the consumer's best interest."

How will it end? We just have to wait and see......

Funny Response from a Lawyer

Mrs Rita Littlewood
26 Underhill
Worsborough Bridge
Barnsley
S70 5DR
5th of March 2004

Dear Mrs Littlewood,

We have recently received intimation of a claim against us from your solicitors Raleys in connection with your slipping on some pigeon shite and doing yourself an injury.

From my knowledge of the area, I would have thought that anybody walking under a
railway bridge in Barnsley would have been a bit more careful (especially a person of your
age and life experience) but that really isn’t relevant.

This company doesn’t have any interest in any property in Barnsley. Although I did once
have a pint with the late Dr Liam Lannigan who you may remember used to hold his
surgeries (if one could call them that) in a local public house with the car parked on a
yellow line outside. Nice chap - shame he took a header down the stairs in one of his rare
moments of sobriety.

I’m afraid that your numpty bunch of ambulance chasing solicitors have been incompetent:
they’ve written to the wrong company.

They have managed to get Railtrack Limited (a Private Limited Company incorporated in Scotland on 8th of May 2003) confused with Railtrack PLC (a Public Limited Company incorporated in England and Wales on 28th of February 1994 and now, following re-registration as a Private Limited Company on 3rd February 2003, known as Network Rail Infrastructure Limited).

It’s a fairly elementary mistake to make and one that the Law Society would probably snigger at.

So, you aren’t going to get a penny from us.

If you really want some free money from the bridge owners, I suggest you get yourself a
decent firm of solicitors (if such a thing exists in Barnsley).

Yours sincerely,

J White
Secretary

(Source: Railtrack Ltd; image courtesy of lawcartoon)

US Government Cracks Down On Megaupload

The US government seized Megaupload’s domain names, grabbing $50 million in assets, and getting New Zealand police to arrest four of the site's key employees, including e founder Kim Dotcom.

The 72-page indictment states that the site earned more than $175 million since its founding in 2005, most of it based on copyright infringement. The indictment goes after six individuals.

The case is a major one, involving international cooperation between the US, Hong Kong, the Netherlands, the UK, Germany, Canada, and the Philippines. In addition to the arrests, 20 search warrants were executed today in multiple countries.

Megaupload controlled 525 servers in Virginia alone and had another 630 in the Netherlands—and many more around the world.) For years, the site has claimed to take down unauthorized content when notified by IP owners. It has registered a DMCA agent with the US government. It has created an “abuse tool” and given rIP owners access. It has negotiated with companies like Universal Music Group about licensing content.

The US government points to numerous internal e-mails and chat logs from employees showing that they were aware of copyrighted material on the site and even shared it with each other. The government says that the site therefore does not qualify for a “safe harbor” of the kind that protected YouTube from Viacom's $1 billion lawsuit.

Megaupload employees apparently knew how the site was being used. They also knew how important copyrighted content was to their business. Employees also had access to analytics. The government therefore concluded that Megaupload knew what was happening and did little to stop it.

The MPAA stated: "By all estimates, Megaupload.com is the largest and most active criminally operated website targeting creative content in the world. This criminal case, more than two years in development, shows that law enforcement can take strong action to protect American intellectual property stolen through sites housed in the United States."

This is for sure a case to watch!

Federal Judge Dismisses Twitter Stalking Case

Federal judge Rodger W. Titus recently dismissed a case against a man accused of stalking a religious leader on Twitter. In his 27-page ruling he stated that his speech, though "uncomfortable," is protected by the Constitution.

Buddhist leader Alyce Zeoli accused William Lawrence Cassidy of harassing her and inflicting "substantial emotional distress". Cassidy was involved with Zeoli and her sect until they had a falling out. In 2010, Cassidy started posting hundreds of harassing messages directed at Zeoli via Twitter and a blog hosted on Blogspot.

The tweets consisted of statements such as: "Do the world a favor and go kill yourself. P.S. Have a nice day." According to Zeoli, the tweets not only inflicted "substantial emotional distress", but also madder her fear for her safety. She claimed that she hadn't left her house for 18 months, except to visit her psychiatrist.

Judge Rodger W. Titus ruled in Cassidy's favor, opining that Twitter is different from other communication mediums like phone calls or emails because a person can ignore items posted on Twitter. In his 27-page ruling, he compared Twitter to the bulletin boards colonial-era citizens used to erect in their front yards. The difference is that Twitter exists online, he said.

"If one colonist wants to see what is on another's bulletin board, he would need to walk over to his neighbor's yard and look at what is posted… Now one can inspect a neighbor's blog by simply turning on a computer," Titus ruled, stating that one colonist can choose to look at a board or ignore it completely.

He continued: "Twitter and blogs are today's equivalent of a bulletin board that one is free to disregard, in contrast, for example, to e-mails or phone calls directed to a victim." Because Zeoli had this option, Cassidy's speech is protected.

The judge also ruled that because some of Cassidy's messages were critical of Zeoli's religious beliefs, his speech is protected by the First Amendment.

The Electronic Frontier Foundation applauded Titus's decision.

"Speech on social networking sites–as with speech anywhere–has the potential to inform and enlighten as well as to outrage," senior staff attorney Matt Zimmerman said. "It is imperative that courts recognize and uphold First Amendment protections in order to give all manner of expression sufficient breathing space to thrive online."

It's unclear whether Zeoli will appeal.

Good news for bloggers

The Supreme Court of Canada ruled that simply making an online link to defamatory content created by someone else does not constitute publishing that content. This ruling means that bloggers and Twitter users are not breaking the law by merely linking to another site that contains libelous or defamatory material. It thus upheld the rulings of the B.C. Supreme Court and the B.C. Court of Appeal.

“The Internet, in short, cannot provide access to information without hyperlinks,” wrote Justice Rosalie Abella. “Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and as a result, freedom of expression.”

The decision was unanimous. However, two justices warned that framing or endorsing the link as the truth or accurate could still be illegal.

“Combined text and hyperlink may amount to publication of defamatory material,” wrote Chief Justice Beverly McLachlin and Justice Morris Fish. “If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content.”

Civil Liberties organizations, Internet advocates and media lawyers all agree that outlawing linking would stem the pace of information online.

(Image courtesy of www.editorsweblog.org)

EU’s New Data Protection Rules

On January 25, the European Commission proposed new data protection legislation. The rules include the "right to be forgotten," under which individuals will be able to delete uploaded personal data if there are no legitimate grounds for retaining them.

The rules would apply if data are handled abroad by companies that offer their services to EU citizens (e.g., Google Inc., Apple Inc., Microsoft Corp. and Facebook). Breaching the rules would be fined by €1 million or up to 2% of the company’s global annual turnover. According to Viviane Reding, the The EU's justice commissioner, the new rules would save businesses about around €2.3 billion ($3 billion) a year.

"My proposals will help build trust in online services because people will be better informed about their rights and in more control of their information," she said in a statement. "A strong, clear and uniform legal framework at EU level will help to unleash the potential of the Digital Single Market and foster economic growth, innovation and job creation."

Needless to say, many are not happy.

"The latest draft still includes a number of draconian requirements for businesses that will be difficult to implement for many," said Jane Finlayson-Brown, a partner in London-based law firm Allen & Overy's data protection team.

“The real concern is that many of the proposed rules will inhibit the free flow of information globally and make it difficult for global businesses to operate and invest in Europe due to greater legal uncertainty, increased administrative burdens and the risk of fines," said James Lovegrove, managing director of TechAmerica Europe, a not-for-profit association representing U.S.-based technology firms in Europe.

If the changes are adopted, companies will deal with a single national data protection authority in the EU country in which they have their main base. Meanwhile, individuals can refer to the data protection authority in their own country even when their data are processed by a company based outside the EU.

Ronald Zink, Microsoft's Chief Operating Officer with responsibility for EU Affairs and Associate General Counsel commented:"The question [is] how do you future proof this; the European Commission is trying to create a regime that will have some staying power. The goal of [the] new proposal is to reduce the burden while increasing privacy protection; I'm optimistic this can be done."

Google reacted on its official blog, announcing that it will streamline its privacy policy from 70 documents to a single main privacy policy. "Regulators globally have been calling for shorter, simpler privacy policies—and having one policy covering many different products is now fairly standard across the web," Google's blog said. "We believe this new, simpler policy will make it easier for people to understand our privacy practices."

The proposals will now be passed on to the European Parliament and EU member states when they meet at EU councils and will take effect two years after they have been adopted.

Community-Based Gang Reducation

Based on the development of a three-year, nation-wide anti-gang strategy for Jamaica, Lieutenant Raymond E. Foster, LAPD (ret.) and international criminologist Michel Amiot developed a Community-Based Gang Reduction Model.

A Community-Based Gang Reduction Model has five key Components:

Building on Community Based Policing Practices;

Building on Intelligence Driven Policing;

Creating Public Safety Threat Assessment Gang Enforcement;

Incorporating Community Driven Problem Solving; and,

Facilitating Community/Stakeholder Involvement

To learn more, please download the folowing file:

Download the 3 Year Anti-Gang Strategy (PDF)

League Tables as a Marketing Tool for Dutch Lawyers

League tables are ranking lists of law firms involved in mergers and takeovers. When pitching for a job, law firms like to refer to their own ranking. It helps with marketing themselves as a major player. Ranking lists that Dutch lawyers like to use are those of the British Chambers and Legal 500.

To be included in these lists, law firms are being investigated, including interviewing clients about their experiences with the firm. The lists mainly serve as indicators of the “health” of the law office. Especially the number and value of the transactions that the firm was involved are great marketing tools. According to Gaike Dalenoord of the law firm Nauta Dutilh: “If you have a high score on both fronts, you are perceived as a serious and influential firm.”

Other league tables that are popular are those of the Nederlandse Overfusies (purely focusing on The Netherlands) and the British Mergermarket (includes all transactions in de Benelux. Both provide the value as well as the amount of deals. Most large international firms prefer scoring high on the value of the deals. They perceive being involved in really big deals as a way to move ahead of competition.

"We are making fun of them, but we still perceive them as an indicator for success”, said Jan Willem de Boer, partner at the Dutch office of Linklaters. “We all provide data about deals to the compilers of the ranking lists.”

Of course – the league tables and ranking lists are great for marketing!

Apple wants to patent and trademark its Thunderbolt trademark and technology

Apple (NASDAQ:AAPL) started the year with submitting three new patent applications. The United States Patent and Trademark Office (USPTO) detailed various aspects of Apple's revolutionary I/O technology called Thunderbolt. Apple already filed a slew of Thunderbolt trademarks in 2011.

But many experts (and lawyers) wonder: does Apple really own the trademark and technology? Many believe that Thunderbolt was developed by Intel (NASDAQ: INTC) and brought to market with technical collaboration from Apple Inc.

However, it seems that savvy Apple goes out of its way to secure Thunderbolt related patents. Already filed Thunderbolt trademarks include multiple and detailed patents. It looks like Apple abandoned its previous (legal) position that its involvement in the development of Thunderbolt was limited to "technical collaboration." Is pulling Apple a fast one on Intel, or is this a classic case of unclear expectations? Intel did not react (yet).

The good news is that Apple seems to be focused on bringing Thunderbolt to iOS devices in the near future. This would mean faster data transfers and faster recharging, which is something users have been looking for.