Archive for August, 2009

Escrow – Now You Know

I have been tackling a bit of work concerning source code escrow. Source code escrow is the deposit of source code of software with a third party escrow agent. This source code can be released to a licensed user of the software – but only if the business or party licensing the software files for bankruptcy (or similar), or otherwise fails to maintain and update the software as it promised in the software licence agreement.

Unlike most compromises, escrow doesn’t leave both parties grumpy. The software provider can keep its source code secret, while the licensee can be safe in the knowledge that if anything goes wrong then software which is valuable (or even central) to its business can continue to be maintained and work properly.

Source code escrow originated around 1975 and today the NCC Group is the world’s largest software escrow provider. In order to enliven this post I called them for some interesting statistics about how many source code escrows they process annually. Unfortunately they declined to provide any details.

So let’s discuss instead the provenance of “escrow”. The word is apparently derived from the French word escroue meaning “scoll” or “roll of writing”. In France in the middle-ages an owner of property executed a kind of deed conveying land to another party on the fulfilment of certain conditions. This deed, the escroue, was given to a third person with instructions that it would take effect as a deed on the performance of an act or event – such as payment of a designated sum of money, or perhaps delivery of a delicious pain au chocolat. This concept was brought to England and in time the term escroue was Anglicised – to escrow.

So now you know. And If you ever win a pub quiz off the back of this you owe me a pint.

An invitation to breakfast

Join us for breakfast this autumn and pick up essential tips on dealing with some common legal problems.

We are giving two seminars in September and October as part of the firm’s autumn seminar series – one on dealing with supplier insolvency and the other on domain name disputes.  In both we hope to provide a basic understanding of the main legal issues whilst putting some practical significance around the topic with our own experiences and suggestions. There will also be time afterwards to put your questions on these areas to our speakers.

All the details (including how to register) are here.

Bacon rolls provided as standard.

We hope to see you there.

The T, I & O Group

Happy 40th Birthday UNIX

The UNIX operating system is 40 years old this month.

The first truly portable o/s, and the mother of so many of today’s operating systems : Aix; Linux; Apple’s System X. There is even Unix code in windows distribution. What an amazing bit of software. 

Does anyone out there remember the Millenium/Y2k bug? Well there may be a similar issue for Unix and its derivatives in 2038 (go to the end of the linked article). 

Should we be writing 2038 compliance clauses in contracts like we did with y2k? Well for high value contracts I still look for a general “date compliance warranty” based on the old y2k warranty.

And while we are on the subject can I just say that 40 is not old. 40 is the new 30, or at least that is what I’ve been telling myself.

Douglas (as old as Unix) Mathie (topic suggested by Martin English)

Procul Harum Case

The Law Lords were taken back to the halcyon days of their youth recently in passing judgment in the copyright dispute over authorship of the organ solo in Procol Harum’s “A Whiter Shade of Pale”.

In one of the last decisions of the House of Lords before it goes into recess and being replaced by the Supreme court of the UK in October, the Law Lords voted unanimously in favour of Matthew Fisher, the band’s organist that he contributed to the famous, if somewhat lugubrious, organ solo. The ruling now means that Mr Fisher will share in future royalties from the song. According to the Financial Times (31/07/09), the song is one of the most successful songs in British pop history, having sold 6 million copies. However, according to the BBC News website (30/07/09), Mr Fisher claimed that the case was never about money, rather more one of recognition of his input and authorship of the recording.

It is clear from the ruling that the courts will seek to protect composers of musical work, and that the passage of time may not be a barrier to asserting intellectual property rights in a work. On that basis the ruling may open the way for other artistes, who feel that their contribution has been overlooked, to make claims for older works, a move that might not be so welcome by the recording industry.

However, although not expressly addressed in the judgment, it was common ground in the pleadings that the right for damages as a result of copyright infringement expires after six years in England (possibly shorter in Scotland).  To put it another way, Mr Fisher could only claim for back royalties for the period starting six years before he raised proceedings.

What was also revealing about the case was that Baroness Hale commented that she was one of those who remembered the 60’s. Surely the Law Lords must have found some time to enjoy themselves in those care free days…? 

Douglas (although to be honest it was mostly written by my Trainee Martin English)

Recording who you were

Thanks to the wonders of my BT Vision box, I’ve been catching up on some old episodes from the latest series of the BBC’s excellent Who Do You Think You Are?.

The episode featuring Radio 1 DJ, Chris Moyles, was a particularly interesting, if sad, story (described to me by one person as being “irrepressibly grim”). As usual, historic records played a significant role in piecing together the story. However in addition to public records such as census data and entries in the records of births, deaths and marriages, archived records held by private entites also played a part – notably those of the biscuits manufacturer, Jacobs, which showed that one of Chris’ ancestors worked at Jacobs’ factory in Dublin.

This got me wondering whether programmes such as Who Do You Think You Are? would be possible if data protection legislation had been in force one hundred years ago. Would those records have been retained or would they have been destroyed as part of good record-keeping practice once the employee had left and the company no longer had a legitimate need to retain them?

What will happen a hundred years from now when someone wants to research their ancestors? Will they be frustrated by a lack of information, or are we now in such an information-rich society that knowledge of the past will never be lost in the first place? Or will we find that the information that is retained is unreadable because it is in out-dated electronic formats (punch cards, magnetic tape, or even floppy disks) that can no longer be accessed? Bar flood, fire and dustmites, paper (even from the 16th century) will always be eye-readable, but electronic formats may not.

Perhaps this blog entry may be read by one of my descendants looking to find out what I was doing one Sunday afternoon in 2009. Provided, of course, that he or she can find one of those old fashioned computer things to read that antiquated HTML code on.


Why not Dubai?

Last week newspapers reported that an Edinburgh-based property developer had won a defamation case in the English High Court against the publishers of a Dubai-based newspaper.

Mark Emlick runs both the Edinburgh-based company Dunedin Independent and also a Dubai property enterprise entitled the Strategic Property Investment Group. In April last year Gulf News published a story on its website falsely accusing Mr Emlick of misleading Dubai investors.

Mr Emlick was awarded £25,000 in compensation for the damage to his business reputation.

This is how the story was reported. However I was surprised that there was no indication that the publishers had at least tried to advance any of the obvious defences that are available in this sort of case. In fact, they didn’t even turn up in Court. Why was this?

It turns out that the publishers didn’t bother with any of this because they entirely rejected the jurisdiction of the High Court. They maintained that a defamation case against a Dubai newspaper brought by a Dubai property developer regarding business events in Dubai should only be heard in a Court in – you’ve guessed it – Dubai.

In contrast presumably Mr Emlick brought the proceedings in England and not Dubai, because English law is very helpful to plaintiffs in defamation proceedings.

Consistent with previous decisions including the colourful case of boxing promoter Don King, the English court decided it did have jurisdition because the on-line edition of the Gulf News was accesible from England, and because Mr Emlick had a reputation in England.

So the on-line publication of an article allows the pro plaintiff English courts to decide defamation issues that are fundamentally unconnected with the UK, provided the plaintiff has a reputation in the UK. 

All that said, if the publishers couldn’t be bothered sending a lawyer to the High Court I doubt they are going to bother sending £25,000.   Also it suggests that they may be prepared to stand behind their accusations. Certainly Mr Emlick has not managed to force the publishers to retract the accusations in the country in which they were made.

I suspect Mr Emlick may have to answer the question “Why not Dubai?” before this matter is resolved to his satisfaction.


Supplier Insolvency – Article in Banking Technology Magazine…

I have an article in Banking Technology Magazine this month about supplier insolvency.
 Although its in a banking magazine most of the comments apply to any purchaser of IT services.
 Click Here for the article.
 Here is a distillation of the article –
 “Once Your Supplier Goes Insolvent its Too Late, So Act Now.”
 Or how about this in the form of a Haiku?
 Supplier goes belly up
Contract is now an irrelevance
I regret inaction

Sparklycard – not just a Barclaycard at Christmas

Friday lunchtime reading took me to an analysis of the Intellectual Property Office’s recent decision in “application no. 2410422 for the registration by Mr Stanley Edward Snelgrove of the trade mark Sparklycard”. Click here to read the full decision.

At the risk of spoiling the ending, Barclays Bank was unsuccessful in opposing the application to register Sparklycard as a trade mark, despite the fact that the Sparklycard application covered much the same ground as Barclays’ various registered trade marks for Barclaycard.

The key determining factors would appear to have been the obvious visual differences between the two marks, and the nature of the goods and services involved here. The IPO placed a lot of emphasis on the care which a customer would normally take in choosing a credit card and the fact that, one way or another, a customer will generally be clear on who he or she is dealing with by the time he or she has completed the card application process. That meant that Barclays failed to show the necessary likelihood of customers being confused into thinking that Sparklycard was provided by Barclays or that consumers would choose to sign up for Sparklycard on the basis of a mental association with the better known Barclaycard, thus taking unfair advantage of Barclays’ undoubtedly strong reputation in that brand.

Mr Snelgrove would appear to have withdrawn his trade mark application in the meantime, suggesting that we may not be able to carry a Sparklycard any time soon. However his case underlines the fact that owners of big brands can’t stop the registration of other marks simply because they are a clever play on the words which make up their own trade marks. Taking trade mark law back to its original purpose, trade marks are badges of trade, allowing purchasers to understand who they are buying from and what to expect by way of quality in goods or services sold under that badge and allowing the trade mark owner in each case to prevent others from benefitting from those expectations. It follows then that trade mark owners are only entitled to prevent the registration of other marks to the extent that that would interfere with that function.

Of course the alternative analysis is that the hearing officer just wanted a Sparklycard. I will leave it to you to decide.


Oi, that was my idea…

To the Edinburgh Fringe to see Richard DeDomenici’s show “Plagiarismo” in which he actually manages to make the subject of intellectual property right theft very entertaining (although perhaps less so if you’re actually one of the victims…). Concentrating on theft in the creative industries, he uses real life examples to show that whilst the big guns make a lot of noise about theft of their products, it can be the smaller artist, with no means of fighting back who suffers.

For example, DeDomenici believes there may be a link between one of his earlier projects – Fame Asylum – in which he formed a boy band made up of asylum seekers – and a later BBC programme. His project was derided by many although Channel 4 did get involved. He now believes the idea for BBC’s “Immigrant Song Contest” could have sprung from his project and wrote to them to try and find out.

He also gives some examples from the music industry and fans of Whigfield will not be disappointed.  In DeDomenici’s opinion the latest law suit waiting to happen in musicland will be Heaven 17 having a pop at Manic Street Preachers, who according to DeDomenici, have “borrowed” the music to the 1983 hit “Temptation” and turned it into “Peeled Apples” a song on the Manic’s new album.  He very amusingly plays the two songs together but with the Heaven 17 video (the highlight of the show for me).  Several reviews of the Manic’s latest album  have mentioned this “similarity” but in case Heaven 17 haven’t spotted it yet, DeDomenici is thinking about telling them and charging a finder’s fee.  He’s also compiling a database of examples of plagiarism and is looking for more examples – details of how to contact him are here


A new Intellectual Property Right for Scotland?

Late last month the UK Parliament passed the Glasgow Commonwealth Games Act 2008 (Games Association Right) Order 2009. This created a new legal right in relation to the Commonwealth Games to be held in Glasgow in 2014.

The right is infringed where someone uses in the course of business a “representation (of any kind)” that suggests an association with the 2014 Games.

The right is enforceable by the Games Organising Committee (“GOC”). This alllows the GOC to effectivley sell the right to be “associated” with the games.

So, for example, if Brodies put on its website a statement along the lines of “proud to be associated with the Glasgow 2014 Commonwealth Games” then we would probably be infringing the new right, and could be pinged by the GOC, because we have not paid the GOC a sponsorship fee . To be clear, Brodies is not sponsoring the 2014 Games.

Nowadays most major events have similar legislation. Here is some information about the the legislation for the London Olympics.

Often there is protection against “ambush marketing”. That is, cheeky marketing that deflates the efforts of an official sponsor. My favourite example is when a Dutch brewery gave free branded t-shirts to a whole bunch of Dutch fans outside the stadium at a World Cup. The television pictures clearly showed all the Dutch fans wearing their new t-shirts behind a Budweiser holding. No doubt Budweiser were not amused (and for those IP geeks out there by Budweiser I mean the American brewery not the Czechoslovakian one).

But there is protection against ambush marketing in the Order.

In fact the Order does not go any further than UK Trade Mark law, and the GOC already has UK registered trade marks in all classes for both the words Glasgow 2014 and its logo.

So what is the point of it? Is it a case of “me too” by the GOC?

The only advantage I can see here is that the GOC is now protected against the risk that one of those registered trade marks is successfully challenged. For example, arguably the “Glasgow 2014” word mark could be challenged as being too descriptive.


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August 2009
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