UK Office: No Cookies Without Informed Consent

We will be discussion international regulations later in the semester, but the Information Commissioner’s Office (ICO) in the UK issued a big announcement this week, and I wanted to mention it now, as it will be relevant to our future discussions.  The ICO told all UK public and private sector businesses that from May 26, 2011, when the EU-backed new e-Privacy law comes into effect, they will be required to get “informed consent” from their website visitors in order to store and retrieve information on their devices.  The law is mainly focused around the use of cookies – small text files placed on a user’s computer for the purposes of logging data such as registration information, user preferences, pages visited, shopping basket items, etc.

The UK regulations were amended last week to comply with the 2009 amendments to the EU’s Privacy and Electronic Communications Directive (Directive 2009/136/EC).

In order to help businesses get ready for the change, the ICO has recently published guidelines providing practical advice on the new cookies rules, explaining what steps you need to take to ensure you comply.  The guidance features many examples for businesses to get a sense of what is covered.  For example, interestingly, the only applicable exception to the cookies rule for most website operators is if the cookie is “strictly necessary” for a service requested by the user.  While there is little guidance on what is “strictly necessary,” the guidelines provide some information.  According to the ICO, cookies used to implement a shopping cart may fall under the “strictly necessary” exception, if the cookies are necessary to ensure that items selected on previous pages are available during check-out.  However, the ICO stressed that this exception is very narrow and would not apply to cookies used to make the website more attractive by remembering users’ preferences.

The guidance is intended to help organizations to start to think about the practical steps they will need to take to remain compliant with the new law. According to the ICO, it will be supplemented by additional content as innovative ways to acquire users’ consent are developed.

What does this mean for other countries that do business in the UK?  Well, when a company offers a UK or EU version of a website, for example, it may be required (or at least expected by users) to follow the EU rules – now implemented locally in the UK.

Facebook v. Teachbook, Round 2

On May 6th, 2011, Facebook Inc. refiled its trademark infringement suit against Teachbook.com LLC, in an Illinois court. Teachbook is a social networking site for teachers. This action comes a few days after the original suit between the two companies was dismissed by a Californian court for lack of jurisdiction. The new case is Facebook Inc. v. Teachbook.com LLC, case number 1:11-cv-03052, in the U.S. District Court for the Northern District of Illinois and the complaint is available here.

Facebook filed the new suit in Illinois, where Northbrook, Ill.-based Teachbook is based. Facebook argues in the new complaint that Teachbook selected its name to capitalize on Facebook’s popularity. According to Facebook’s new suit, Teachbook offers social networking features similar to those offered by Facebook and has promoted itself as a substitute for Facebook.

Since many schools forbid teachers from having Facebook accounts due to the risk that students may learn personal information about their teachers, Teachbook allows users to manage their profile so that only other teachers may see it, the suit says.

These substantive arguments were also made in the original California complaint, but the suit was dismissed on jurisdictional grounds before the court had a chance to decide the trademark claims.

As we will discuss in class, in most internet-based cases, jurisdiction is one of the first major hurdles in any legal battle. Jurisdiction is the authority of a court to hear and decide a case.

We will discuss this in more detail in class, but the standard for what is called “long arm jurisdiction” is that there are minimum contacts with forum state such that the maintenance of the suit does not “offend traditional notions of fair play and substantial justice.”  We will also review the different types of personal jurisdiction: “general” or “specific.”

General jurisdiction arises when a defendant maintains ‘continuous and systematic’ contacts with the forum state even when the cause of action has no relation to those contacts. In contrast, specific jurisdiction exists based on isolated or sporadic contact with the forum state if the claim “arises out of” that contact.

So, the California judge ruled that the California court was the wrong venue for the suit because Teachbook does not have any members in California. The court applied the well-known “effects test” from Calder v. Jones, 465 U.S. 783 (1984), which will read in class in a couple of weeks.

Facebook is currently engaged in various pending legal battles with a number of sites that use “-book” in their names, such as Lamebook. Additionally Facebook also sued the startup travel site PlaceBook, which changed its name to TripTrace to avoid an expensive lawsuit.

This case will be important to watch over the semester, and will help settle the question: Can Facebook claim a right to the suffix “-book” on any other company with a web presence?

Tyson Face Tattoo in Hangover 2 Now a Lawsuit

Tattoo IP Litigation: Apparently, Warner Bros. failed to ask for permission from S. Victor Whitmill, or credit his creation most famously marked on Mike Tyson’s face, before it placed the image on the face the character Stu Price , played by actor Ed Helms, in its upcoming motion picture “The Hangover 2.”

Whitmill sued Warner Bros. Entertainment Inc. in Missouri on Thursday.  According to the suit, the film features an exact reproduction of the original tattoo: “The pirated tattoo is a recurring device and plays an important role in the plot of the movie.”   The suit was accompanied by a motion for an injunction blocking the defendant from infringing Whitmill’s work.

How can a tatoo designer own something that is tattooed on another face?  According to the complaint, Whitmill made the design for Tyson in 2003, and at that time Tyson signed a release form acknowledging the work was the property of Whitmill’s business, called Paradox Studio of Dermagraphics.  The contract is an exhibit in the lawsuit, and, clear enough, the clause states “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics.”  Just another example of how you can contract rights to just about anything.  Coincidentally, Techdirt featured two posts earlier this month on the role of tattoos under intellectual property law. (Is the face “the place of publication?”)

I think there is a settlement in the future.  Suing a movie before its release seems to happen more frequently [Da Vinci Code, Harry Potter, and the sculptor who sued Warner Bros. for the large sculpture prominently featured in Al Pacino's apartment (Mr. Pacino plays the Devil) in the film The Devil's Advocate] and typically ends in either settlement or dismissal.  This one seem closer to settlement.