Wednesday, June 20, 2007

First computer game banned in Ireland

Manhunt 2 has achieved the dubious honour of becoming the first game to be banned in Ireland. From the Irish Film Censors Office:

A prohibition order has been made by IFCO in relation to the video game Manhunt 2. The Order was made on 18th June 2007 under Sec 7 (1) (b) of the Video Recordings Act 1989 which refers to ‘acts of gross violence or cruelty (including mutilation and torture)’.

IFCO recognizes that in certain films, DVDs and video games, strong graphic violence may be a justifiable element within the overall context of the work. However, in the case of Manhunt 2, IFCO believes that there is no such context, and the level of gross, unrelenting and gratuitous violence is unacceptable.
The Irish Times points out that this parallels a ban by the British Board of Film Classification:
Manhunt 2 has also been banned by the British Board of Film Classification, which has made it illegal for the game to be supplied anywhere in the UK.

A statement from the board yesterday said: "Rejecting a work is a very serious action and one which we do not take lightly. Where possible we try to consider cuts or, in the case of games, modifications which remove the material which contravenes the board's published guidelines.

"In the case of Manhunt 2 this has not been possible. Manhunt 2 is distinguishable from recent high-end video games by its unremitting bleakness and callousness of tone in an overall game context which constantly encourages visceral killing with exceptionally little alleviation or distancing.

"There is sustained and cumulative casual sadism in the way in which these killings are committed, and encouraged, in the game."
The system for censoring / self-classification of games in Ireland is a curious one - in part statutory, and in part based on voluntary cooperation between the games industry and the Film Censor. Marie McGonagle has outlined the system in detail here (PDF, pp. 23-30). The ban reflects a worrying worldwide trend towards greater censorship of games, in many cases whether or not aimed at adults.

Monday, June 11, 2007

Sharing out online liability: sharing files, sharing risks

My colleague Bob Clark has just published a very interesting article on legal implications of filesharing in the Journal of Intellectual Property Law & Practice. In comments that will be of particular interest to the 23 filesharers recently identified by the High Court, he suggests that the methods used by the music industry to monitor p2p networks might themselves be illegal:
The privacy interest
When the issue of a rightholder's ability to compel disclosure of the details of the person standing behind an IP address arises, personal privacy arguments have not succeeded in either the Irish or Canadian courts. In contrast, it is widely reported that the French Data Protection Authority has ruled that the automated monitoring of users of P2P filesharing systems may not be permitted since it results in the accumulation of ‘a massive collection of personal data’, on the basis of exhaustive and continuous surveillance' of P2P sites that goes ‘beyond that which is necessary for the fight against piracy’. While the impact of the new French Copyright law remains to be assessed, the IFPI is optimistic that data protection law does not bar discovery of identity orders in French courts. The view of the English and Irish courts is that, because data protection legislation in each jurisdiction permits personal data to be obtained following court orders, as long as the rightholder uses a Norwich Pharmacal or similar civil procedure the ISP will be able to disclose personal data about suspected filesharers. In EMI v Eircom Kelly J said, of the rights of privacy:
"the statutory entitlements, whether they arise under the Data Protection legislation of the Postal and telecommunications legislation are subject to a provision which permits the confidentiality to be legitimately breached by an order of the Court."
While he conceded that the law did not prescribe the conditions under which an order may be made, the ‘necessity’ test vis-à-vis Norwich Pharmacal is flexible enough to afford a basis for such an order.

What may remain unexplored is the difficulty rightholders may have in some jurisdictions in collecting evidence. Case-law suggests that the standard methodology is to engage a US agency, MediaSentry, to monitor volume uses of MP3 files, taking a 10 minute snapshot of real time users in order to identify potentially infringing filesharers on a high volume basis. In BREIN, the collection of personal data by MediaSentry on behalf of BREIN was held unlawful, MediaSentry not having signed up to the EU/US Safe Harbor Agreement. The Utrecht Court's ruling was upheld on appeal on the basis of infringement of privacy by MediaSentry and because MediaSentry's software was not sophisticated enough to identify users or acts of infringement correctly. This manner in which information is collected was also considered in Sharman, when Wilcox J put it to the MediaSentry witness: ‘so what you are doing is, you are in effect spying on a person who is in the act of downloading’.

In the context of Irish law, intrusive methods of collecting data may be challengeable under the privacy provisions in the EU Telecommunications Data Protection Directive, as well as under the constitutional guarantee of privacy in respect of the communication of messages. It is also uncertain whether rightholders are illegally using telecommunications technology to intercept communications as MediaSentry, at the time of the interception, clearly had no authority to do this. Thus, one may need to distinguish between activities that employ privacy intrusive techniques to collect evidence (no legal process having yet taken place) and a subsequent court application to complete the chain of evidence, to secure the names and addresses of persons behind the IP address. In the former case, serious statutory and constitutional law issues may need to be addressed. Until more light is cast on the methods of data collection used initially to identify suspects by organizations such as MediaSentry, this uncertainty will remain.

Rightholders may be aware that some collection techniques are legally suspect. In November 2005, the Creative and Media Business Alliance attempted to persuade the members of the European Parliament to extend the draft Data Protection Directive to cover offences that arise from copyright infringement. This attempt failed, the lobbying being attacked as both an infringement of civil liberties and an attempt to transfer the cost of protecting copyright from well-funded industries to European taxpayers and telecoms subscribers.

Wednesday, June 06, 2007

Copyright in custom code: Who owns commissioned software?

Commissioned or bespoke software can raise difficult issues of ownership if there is no clear agreement in place between the client and the developer. Who will own the copyright? Can the developer reuse code written for a particular client? Is the client entitled to modify or update the code? Can the client resell the software? Might the client be limited to using the code in a particular market sector or in a particular jurisdiction? Who owns any database rights in bespoke software? Does it matter whether the client is given the source code? Does it matter how much the client has paid for the software? Can a client claim joint authorship on the basis of their role in providing detailed specifications and taking part in beta testing? Might the moral rights of the developer limit what the client can do with the software?

I discuss the legal issues involved in this article which has just been published in the Journal of Intellectual Property Law & Practice.

Update: Out-Law have a report of a recent case exactly on point.