Network Security May 1999

the permission of the copyright owner has infringed the owner’s rights. This is so regardless of the form the infringed work takes, or the medium in which it is expressed I

Unauthorized copying of the contents of a Web site is an infringement of copyright in the same way as making bootleg tapes or photocopying a book. With digltalisation it is now possible to make perfect copies every single time. The value to the intellectual property pirate of cheap perfect copies is enormous and anything which can be produced in a digital format will now be susceptible to large scale piracy.

As far as catching a pirate is concerned, if the pirate Is located in the UK then he can be sued for breach of copyright. Similarly, if the pirate is located In a country which Is a Berne Convention signatory, then he can be sued under that country’s equivalent to the UK’s copyright laws. The list of signatories to the Berne convention is lengthy and generally the approximation of copyright laws globally is high. The greatest challenge is to discover exactly where the pirate is located. It is here that technology rather than the law comes into play.

But what of the casual copier? The casual copier may find that he is not in fact infringing copyright if the copying falls into one of the fair dealing exceptions. The exceptions permit copying when it is for the purposes of “research or private study”, “criticism, review and news reporting” or “things done for the purposes of instruction or examination”. Also, by posting material on the Web, It may be implicit that you are allowing visitors to cache those pages in

their computer, print them, copy them to disk and make such use of them as is consistent with the nature of the site. If none of the exceptions apply, and the copying is not implicitly allowed, then an infringement has occurred. In the real, as opposed to the ‘cyber’ world, copyright is Infringed constantly and no action is taken by the copyright owner because it is not economically viable or considered necessary to do so. Indeed, there may be commercial advantages to allowing the free copying of one’s work. By making a book freely available on the Internet some authors have found that publisher’s sales increase rather than decrease as a result.

What are the practical moves that the Web site owner can take to protect his Intellectual property? Firstly, it is important that the Web site owner either owns all copyright in material provided at his Web site or (if he doesn’t own it) has the right to use that material at his Web site.

For example, text and graphics created for the Web site owner by an external designer belongs to the external designer unless specifically assigned by written agreement. Web site owners should ensure that they take assignments of copyright in material commissioned to an external designer,

Also, it is advisable to include on Web sites an appropriately worded copyright statement. First, this will claim your copyright to the site contents under international convention. It also has some practical benefits. Second, the notice will give express permission for material to be used in the way you intend, but not otherwise. It may be unrealistic to say ‘all rights

reserved”. If the user has got that far, the chances are that he has already technically infringed the copyright.

$107 million damages for disseminating unlawful information on a Web site

A federal jury In Portland, Oregon, USA has ordered 12 defendants who disseminated personal Information about abortion providers on posters and on the Internet to pay El07 million In punitive damages. The Nuremberg Files site (so-called because abortion is seen as a crime against humanity) linked hundreds of ‘baby butchers’ and displayed pictures of mangled late-term foetuses. Visitors were asked to provide information on doctors who performed abortions, such as their home addresses, car registration numbers and even the names of their children.

Three doctors who names appear on the list have been murdered. When a doctor was killed by a sniper in his home In Buffalo, New York, USA, his name was left on the site, but crossed out. The jury found the defendants had violated the Freedom of Access to Clinic Entrances Act and the Racketeer Influenced Corrupt Organizations Act.

The case is significant not just for the size of the award of damages but also because It may redefine what is considered in the US to be constitutionally protected political speech. The defendants argued that their Old West-style ‘Wanted’ posters and the Nuremberg Files site were just a non-violent form of political speech. However, the jury found

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that the data provided by the defendants could be construed by a reasonable person to be a true threat to abortion providers and thus not protected by the First Amendment. The judge instructed the jury to make their decisions in the light of all the circumstances (including the murders of doctors), not just the printed words. The case is unprecedented because, until now, incitement has been applied only in face-to-face communication and historically the US courts have protected rude and violent public rhetoric and hyperbole as opposed to actual incitement or aiding or abetting murder.

The case will no doubt be appealed, not only because of its implications for the right to free speech, but also because of the depth of feeling between the defendants and the plaintiffs. Whether the award will ever be paid to Planned Parenthood and other plaintlffs remains uncertain. Vowing defiance, one anti- abortionist defendant said handing over any money “would be like asking Martin Luther King to pay money to the Klu Klux Klan”.

UK E-Commerce Bill - summary

The UK Government issued on 5 March 1999 its long awaited Consultation paper on Electronic Commerce. The closing date for comments was Thursday 1 April 1999. Two responses to the Government’s proposals can be viewed at Cyber-Rights & Cyber-Liberties (UK) (http: wwwcyber-rights,org/reports/dti 99.htm) and Clive Feather - Director of Software Development for Demon Internet Ltd (http:www.davros.org/legal/ ecommsub.html).

The Government says that it is committed to introducing legislation in the current Parliamentary session and has set the ambitious goal of developing the UK as “the world’s best place in which to trade electronically”.

One of the more controversial aspects of the proposed legislation is the question of key escrow. The Government has backed away from the controversial proposal for key escrow (‘Trusted Third Parties’ holding the keys to coded data sent over the Internet). It is a relief that the Government has acknowledged the reality that the criminal fraternity will not deposit private keys - allowing law enforcement authorities to unlock their conspiratorial communications - even if the law requires them to.

However, the less controversial aspects of the Consultation paper are perhaps the most important from a legal viewpoint. Much of the actual legislation will be relegated to statutory instrument and so the new E-Commerce Act will mainly be an enabling Act. The devil is likely to be in the detail of the Regulations as and when they are issued. The legislation is intended to implement some key European Directives which have yet to be finalized.

Elec tfonic Signutufes Difec tive

Electronic signatures can be used to ensure the integrity of information (ensuring its content has not been altered), to verify the author of the information and to ensure confidentiality. Digitally signed documents and messages are to be given legal recognition. Voluntary licensing arrangements will be introduced

for bodies offering cryptographic services.

It is proposed that there be a statutory rebuttable presumption that an electronic signature, meeting certain conditions, correctly identifies the signatory it purports to identify: and, where it purports to guarantee that the accompanying data has not been altered since signature, that it has not.

The licensing regime will be set up in such a way that an electronic signature, backed up by a certificate from a licensed Certification Authority, will automatically satisfy the conditions necessary to be regarded as legally equivalent to a hand-written signature.

The Government’s intention is not to deny legal recognition to electronic signatures which are not backed by certificates from licensed Certification Authorities, but parties relying on them may be taking on a higher level of risk.

Elec tfonic Commerce Difec tive

This focuses on creating a framework within which European business will have the legal certainty needed to take full advantage of the opportunities offered by electronic commerce. It covers the treatment of electronic contracts and provisions at the moment at which a contract is concluded. The Directive seeks to ensure that, as far as possible, the law does not discriminate between traditional and electronic ways of doing business, i.e. that the law should be “technology neutral”.

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