Laws of .com

Volume VI, Issue 7: April 3, 2008

Court Holds Facebook Threats Empty

New Video Surveillance Guidelines Issued by Privacy Commissions

U.S. Court Upholds Man's Criticisms of Wal-Mart

Battle Forming Over World of Warcraft Bot

Antigua Threatens to Retaliate by Allowing Piracy Following a Trade Dispute with the United States

College Gossip Site Subpoenaed

Court Holds Facebook Threats Empty

On March 3, 2008, the Ontario Court of Justice ruled that Daniel Sather was not guilty of threatening to cause death or serious bodily harm pursuant to s.264.1(1)(a) of the Criminal Code, based on threats he made on the popular social networking site, Facebook.

After Mr. and Mrs. Sather had their newborn son removed from their custody by the Children Aid Society (CAS), Mr. Sather made numerous postings on Facebook that were construed by CAS and its employees as grave threats against them.

The Court ruled that although the actus reus was made out through the act of the postings, the mens rea, or in other words, the intent to actually instill fear or to intimidate, was not proved beyond a reasonable doubt.

Expert evidence was led to the effect that Facebook allowed users to embellish their character, to say provocative things to elicit responses from only their Facebook “friends” and, in essence, create an alter ego or persona. In effect, the Court considered that actions such as posting threats on Facebook should not always be construed seriously.

Other reasons for the Court’s determination were that Mr. Sather had direct contact with CAS personnel and never did or said anything to instill fear in them; the only way CAS found out about the threats was through a fortuitous search by a CAS employee; and lastly, Mr. Sather testified that he was only blowing off steam as he had been taught in a prior anger management course.

This ruling may cause concern for anti-bullying advocates who are trying to curb the phenomenon of “cyber-bullying” on Facebook and similar sites.

For a copy of the decision, visit:
http://www.canlii.org/en/on/oncj/doc/2008/2008oncj98/2008oncj98.html

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New Video Surveillance Guidelines Issued by Privacy Commissions

The federal, Alberta and British Columbia privacy commissioners jointly released Guidelines for Overt Video Surveillance in the Private Sector on March 6, 2008. The guidelines are intended to respond to the increased use of video surveillance in the private sector but are not intended to apply to covert surveillance (e.g. as conducted by private investigators or employers). The guidelines are aimed at businesses that employ or are considering employing surveillance and are subject to federal PIPEDA or provincial information protection acts in Alberta and British Columbia. Other laws or guidelines may apply in other provinces.

The overriding principle for privacy compliance in a video surveillance context is said to be reasonableness: “it should be used only for purposes that a reasonable person would consider appropriate in the circumstances.”

For a copy of the guidelines, visit:
http://www.privcom.gc.ca/information/guide/2008/gl_vs_080306_e.asp

For additional information, visit:
http://www.privcom.gc.ca/media/nr-c/2008/nr-c_080306_e.asp

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U.S. Court Upholds Man's Criticisms of Wal-Mart

A U.S. District Court has recently upheld a man’s right to criticize Wal-Mart, the U.S.-based discount department store company, through the use of the websites, www.walocaust.com and www.walqaeda.com, as well as parody-related merchandise. In 2005, Charles Smith began selling t-shirts bearing satirical statements about Wal-Mart through CafePress, an online retailer of user-customized products. At the request of Wal-Mart, CafePress removed such merchandise from its online store. In response, Smith sued Wal-Mart seeking a ruling that would allow him to continue marketing his merchandise. Wal-Mart countersued Smith, alleging trademark infringement, arguing that the logos used on Smith’s merchandise tarnished Wal-Mart’s trademarks and reputation. Wal-Mart also challenged Smith’s use of the domain names. In deciding for Smith, the judge observed that Smith’s websites effectively disassociated themselves from Wal-Mart stores through the use of disclaimers and links to the real Wal-Mart website. The judge further noted that the terms “Walocaust” and “Wal-Quaeda” were unlikely to be confused with Wal-Mart’s trademarks since they were merely successful parodies of the widely recognized marks. Wal-Mart is considering its appeal options.

For additional information, visit:
http://www.ajc.com/business/content/metro/atlanta/stories/2008/03/25/walmart_0326.html

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Battle Forming Over World of Warcraft Bot

Blizzard, the makers of the online multiplayer role-playing game World of Warcraft (“WOW”) are in the midst of a legal dispute with a software firm that has produced a software tool (known in the industry as a “bot”) to automate many player actions in the virtual game world. Blizzard is suing Michael Donnelly, the creator of the MMO Glider program (formerly known as “WOW Glider”), which automatically performs tasks in the game, such as fighting, without the need for any user input or even attendance. Both sides have made submissions for summary judgment in the matter to the District Court of Arizona.

Blizzard is alleging that the MMO Glider program infringes its copyright in the WOW software by acting as a launch program and loading a copy of the WOW software into the RAM of the user’s computer. Blizzard is further alleging that the MMO Glider software violates the WOW End User License Agreement (EULA) and Terms of Usage (TOU) by circumventing anti-bot and anti-cheat controls in the WOW software. Blizzard is also claiming significant damages as a result of disruption of the WOW in-game economy, as well as reduced player participation, as a result of ongoing usage of the MMO Glider by current players.

Michael Donnelly claims that over 100,000 copies of MMO Glider have been sold, and the purpose of the software is to ease more tedious aspects of the game that arise when players reach high levels. The suit was initially filed by Donnelly seeking a declaratory judgment that the MMO Glider does not violate any of Blizzard’s intellectual property rights.

For additional information, visit:
http://news.bbc.co.uk/2/hi/technology/7314353.stm

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Antigua Threatens to Retaliate by Allowing Piracy Following a Trade Dispute with the United States

Antigua has threatened to allow copyright infringement on goods such as films, music and other “soft targets” from the U.S. in response to the alleged intransigence of the U.S. in settling a trade dispute between the two countries. The dispute arose in 2003 when Antigua claimed and successfully argued before the World Trade Organization (“WTO”), that the U.S. had unlawfully blocked online gambling operators in Antigua from accessing the U.S. market, despite the U.S. permitting domestic online wagering on horse racing.

After the U.S. failed to implement the recommendations and rulings of the WTO, Antigua requested authorization from the WTO to suspend its obligations with respect to the U.S. under the Trade-Related Aspects of Intellectual Property Rights Agreement. In December 2007 a WTO arbitrator determined that Antigua was permitted to retaliate in this manner, at a level not exceeding US$21 million annually.

For additional information, visit:
http://www.variety.com/article/VR1117982630.html?categoryid=1338&cs=1

For a summary of the dispute before the WTO, visit:
http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds285_e.htm

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College Gossip Site Subpoenaed

Juiceycampus.com is a website that provides an anonymous forum for university students to post gossip about each other. The posts are uncensored, and include comments about students’ looks, sexual histories, and other personal details.

The site claims total anonymity for its users, a claim that may be tested by the recent subpoena obtained by New Jersey prosecutors. New Jersey’s Attorney General has indicated that the site may be in violation of the Consumer Fraud Act by failing to monitor its content for offensive material and by failing to provide a means for users to report or dispute items posted on the site as false or offensive. Connecticut and California are also investigating whether the site may be engaging in illegal activities that violate consumer protection laws.

For additional information, visit:
http://www.dailynexus.com/article.php?a=16246

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