Copyright – where should the buck stop?
Jinfo Blog

2nd June 2010

By Tim Buckley Owen

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As if Goldman Sachs weren’t in enough trouble already, they’re now being sued in the United States by investment data provider Ipreo for alleged copyright infringement. But, as new United Kingdom rules for dealing with comparable offences go out for consultation, the evidence continues to build up that policing copyright raises more problems than it solves. Ipreo alleges that at least two Goldman Sachs employees, and possibly more, illegally accessed its Bigdough contacts and profiles database over 200 times, downloading substantial amounts of data using log-in credentials belonging to someone else (widely reported – see for example ComputerWorld at http://digbig.com/5bbrkx). It’s not the first time recently that an information provider has sued a customer in the US; the FT did it last year, accusing the private equity firm Blackstone of multiple use of its ft.com log-in (http://www.vivavip.com/go/e16109) and eventually reaching a successful out-of-court settlement (http://www.vivavip.com/go/e18994). But Mike Masnick suggests on the Techdirt blog that in this instance Ipreo may be taking a sledgehammer to a little crop of nuts – for instance in apparently claiming that its contacts database actually constitutes ‘hot news’, which is protected by earlier judicial rulings. More significant, though, are the issues of whether GS really can be held liable for the activities of a few rogue employees – and indeed whether merely sharing a log-in actually violates the US Computer Fraud and Abuse Act at all (http://digbig.com/5bbrky). These are issues that the United Kingdom regulator Ofcom may well be chewing on as it consults on its draft code of practice to reduce online copyright infringement (http://digbig.com/5bbrma – out for consultation till 30 July). As in the GS case, the draft concerns itself with who should police suspected violations (Ofcom is suggesting it should initially be the seven biggest fixed line internet service providers – not smaller ones or mobile operators) and the circumstances under which copyright holders can take legal action (against alleged serial copyright infringers above a certain threshold, apparently unspecified as yet). Ofcom’s draft code is born of the previous UK government’s much criticised Digital Economy Act (see for instance Joanna Ptolomey’s LiveWire posting at http://www.vivavip.com/go/e28208). It narrowly averted being consigned to oblivion when the general election was called, being let through with some last minute amendment under the Parliamentary ‘wash-up’ process (see http://digbig.com/5bbkwf for a helpful guide from paidContent:UK to which bits survived and which didn’t). But the real issue behind both these developments – one American and judicial, the other British and statutory – is how effective the authorities can be at policing copyright at all. As FreePint’s Copyright Policies and Practices survey (http://www.vivavip.com/go/e28480) uncompromisingly concludes: ‘The only framework that truly matters is behavioural’.

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