@eLaw.com.hk 葉謝鄧律師行

Hyperlinking and Deeplinking

The world wide web has enable various web-sites, albeit owned individually by their owners, to virtually operate like one 'book'. The use of hyperlinks on web pages practically results in zero differentiation among contents of each of the web-sites. Any web-sites and in fact any pages on the Internet can be easily hyperlinked and such hyperlinking can be done without any knowledge or authorisation of the web-site being hyperlinked.

Web-site operators have the temptation of linking the inner content of certain web-sites interesting to them, thereby enriching their contents but at the same time, bypassing the front page and less inner pages of the web-sites. Such doing can or may offend the owner of the web-site being hyperlinked as integrity of the web-site is 'damaged', pages are bypassed thereby reducing the number of banner exposure.

A prudent web-site owner should adopt the following rule of thumbs when considering linking:

1. design the web-site with simple hyperlink only. Hyperlink should lead the user to the home page (first page) of the linked web-site.

2. use of trade mark or logo in the hyperlinks should be authorised by the trade mark and logo owner

3. do not deeplink other web-sites without prior consent or authorisation

4. do not link other web-sites by 'framing' unless with prior consent or authorisation.

Secure Digital Music Initiative (SDMI)

In 1999 the Recording Industry Association of America (RIAA), a New York not-for-profit corporation with a place of business in Washington D.C. 20036, corralled technology companies to form the Secure Digital Music Initiative (SDMI). The group set out to establish a system through which the public's use of digital audio files could be strictly governed. RIAA is . It represents entities which manufacture and distribute sound recordings, including the five major labels and many of their subsidiary labels.

SDMI quickly gained its reputation as a place where RIAA members could manipulate technology manufacturers.

Digital audio watermarks are frequency patterns imbedded within a recording that carry instructions. SDMI compliant files utilize techniques such as digital watermarking to dictate "usage rules" to SDMI compliant devices. For instance, dictating SDMI devices enforce the rules placed on a song by the record company about the number of copies that may be made of a file.
Security professionals have found the audio watermarks utilized by SDMI to be relatively easy to defeat.

The DMCA outlaws bypassing "digital straight jackets" put in place by the Copyright holder. It also outlaws telling others how to bypass those straight jackets. The computer code that describes how to circumvent the technology also teaches how the technology works. The RIAA, SDMI and Verance do not want security professionals published the code because it describes how the technology works and they have all made threats against security professional like Professor Felten of Princeton University, his research team and the conferences that publish his work that they are 'providing a circumvention device in violation of the DMCA'.

Professor Felten is one of the plaintiffs in EFF's challenge of the DMCA. The noted scientist is the leader of a research team that participated in the Secure Digital Music Initiative's (SDMI) "Public Challenge" (also know as "Hack SDMI") and successfully defeated the technology. His team authored, "Reading Between the Lines: Lessons from the SDMI Challenge," explaining their research findings that was accepted for publication at the 4th International Information Hiding Workshop Conference in April 2001. Just prior to the conference, the Princeton Professor received a letter from Matt Oppenheim from the Recording Industry Association of America (RIAA) and the Secure Digital Music Initiative (SDMI) that threatened a lawsuit against Professor Felten's team and their universities and the workshop organizers if the paper was published.

The Electronic Frontier Foundation asked the court to declare that Felten and the rest of his research team have the right to publish their paper and discuss their findings with others. The argument is based on the right of free of expression under the First Amendment of the US Constitution and fair use under the copyright laws.

June 2001

Pavlovich v. DVDCCA (the CA DVD case)

According to the Electronic Frontier Foundation, the DVD Copy Control Association (DVD-CCA), a newly formed mouthpiece of the MPAA, is suing dozens of individuals who put DeCSS on their Web sites (in various places around the country and around the world), alleging that plaintiffs misappropriated trade secrets when they reverse engineered DVD technology. On December 13, 2000 the California Supreme Court granted defendant Matthew Pavlovich's petition for review based on lack of personal jurisdiction over him, sending the matter back to the trial judge to show why the non-California resident should remain in the case, marking a victory for EFF.

At issue: Same First Amendment implications as the NY case; also whether the pretense of "trade secrets" will enable companies to punish those engaged in lawful reverse engineering.

Universal v. Reimerdes (a.k.a. the NY DVD case)

Eight major motion picture studios brought a suit under the DMCA against defendant, 2600 Magazine to enjoin it from publishing or linking to DeCSS, a computer program that circumvents the encryption on DVDs, called CSS.

According to the Electronic Frontier Foundation (eff.org), the case arises from 2600 Magazine's publication of and linking to a computer program called DeCSS in November, 1999 as part of its news coverage about DVD decryption software. DeCSS decrypts movies on DVDs that have been encrypted by a computer program called CSS. Decryption of DVD movies is necessary in order to make fair use of the movies as well as to play DVD movies on computers running the GNU/Linux operating system.

The Movie Studios have sued 2600 Magazine under the DMCA which prevents the publication of programs that can decrypt DVDs or other digital media. Most recently the law was used to frighten a Princeton Computer Science Professor, Edward Felton, from presenting a paper describing how to break proposed watermarks on CDs at a scientific conference.

At issue: Whether fair use, free software, linking and reverse engineering will survive the digital age.

The Digital Millennium Copyright Act ("DMCA") in the US

The Digital Millennium Copyright Act ("DMCA") was passed on 4th August 1998 by the House of Representatives, USA over the objections of scientists, librarians and cryptographers. As it has been interpreted by the courts thus far, the DMCA bans devices whose primary purpose is to enable circumvention of technical protection systems, and also prohibits the circumvention of technological protection or access control measures used by copyright owners. These are called the 'anti-circumvention provisions'.

The Electronic Frontier Foundation (EFF), a non-profit advocating organization on free speech and privacy commented that "DMCA is very bad news because it tilts the delicate balance between copyright and First Amendment too heavily toward the copyright holders. This is because circumventing access controls is necessary in order to make fair use and many kinds of ordinary, legal uses of DVDs, such as playing them on Linux machines."

Date: 29 May 2001

Copyright in the Cyberspace FAQ

Q: Do copyright laws apply to publications made on the Internet?
A: Yes. Anybody connected to the Internet can easily post messages on the world wide web through message board, chat room and newsgroup. Copyright laws equally apply to Internet publications despite its easy and convenient use and access.

Q: On what law copyright is based upon?
A: The Copyright Ordinance gives express provisions on copyright.

Q: Does the copyright owner has to register his rights in order to obtain the legal protection?
A: No. Unlike other intellectual property rights such as trade mark and patent, copyright does not require any registration. Under the Berne Convention, Governments should not set any registration procedures as a condition of copyright protection.

Q: What works have copyright protection?
A: They are literary, dramatic, musical or artistic works, sound recordings, films, broadcasts or cable programs; and typographical arrangement of published editions.

Q: Any particular criteria is required for getting legal protection?
A: The works should not be ideas. It must be an expression. The works must also be original and satisfy the criteria of fixation. Fixation requires a work 'fixed' on certain media such as a poem written down on a piece of paper, musical works recorded in a tape. Works stored in the hard disk of a web server satisfies the fixation requirement.

Q: Does it amount to infringement by uploading musical works e.g. a song of Nicholas Tse from a licensed CD to the Internet for public download?
A: A purchased CD is licensed for personal listening only. Uploading musical works on the Internet would copy the song onto the hard disk of the web server thereby duplicating the work. As the duplication is open for public download, it violates the licence. It is also likely that the uploader has committed the restricted act of making available copies for copying.

Q: Does it amount to infringement if I do not copy the news article word by word and I do not copy the entire content?
A: The copyright owner only has to prove substantial copying. Substantiality means quantity and/or quality of copying and is decided based on facts of the case. In law, word by word copying is called literal copying. However, non-literal i.e. indirect copying is still an infringement.

Q: Why mp3.com settled litigation cases with the musical copyright agents?
A: mp3.com's legal position is comparatively weak. There are previous cases decided by the American court similar to mp3.com's context. They have all decided in favour of the copyright owner. The Playboy v. Frena case related to uploading of gif files (digitised by scanning from Playboy magazine) on BBS. The Sega v Maphia case related to uploading of game programs on BBS for download. However, these two cases are not binding on the Hong Kong Courts.

Q: Will Napster face the fate of being closed down by the American Court?
A: Napster is not like mp3.com. Napster does not upload any musical works on the Internet by itself. Users download the computer program and have it installed at its own PC, enabling musical files exchanged and download which people of Napster.com does not play a part. It is like manufacturer producing double cassette for people making copies (CBS Songs v Amstrad); RIO manufactures mp3 player for people to copy their favourite songs onto the mp3 player. In both cases the copyright owners failed in their legal action. But it should also be noted that recently HP has settled a legal action by agreeing to pay a certain sum of money to the copyright agent for every CD Writer produced by HP. It is highly likely that Napster's case will be settled out-of-court by the parties by Napster agreeing to pay royalties to the copyright agents.

Prevention of Copyright Piracy Ordinance

The Ordinance sets out a statutory licensing scheme for the manufacture of optical discs in Hong Kong. The Ordinance also stipulates that all optical discs produced in Hong Kong have to be permanently marked with a code indicating their source of manufacture.

The Ordinance also contains extensive enforcement provisions. It empowers Customs officers to better monitor optical disc manufacturing plants in Hong Kong and prevents them from being used for copyright infringing activities.

The main provisions of the Ordinance are:

1. All business involved in the production of optical discs in Hong Kong will be required to obtain a licence from the Commissioner of Customs and Excise.
2. Manufacturing optical disc in Hong Kong without a valid licence from the Commissioner is an offence punishable with a maximum fine of HK$500,000 and to imprisonment for up to two years on first conviction. The maximum penalties will be doubled for second and subsequent convictions.
3. All optical discs manufactured in Hong Kong must bear a unique manufacturer's code indicating their source of manufacture. The codes will be assigned by the Commissioner of Customs and Excise. Fines of up to $100,000 and up to 2 years of imprisonment for producing optical discs that do not have the manufacturer's code marked on them.
4. Customs officers will have the power to inspect all licensed premises at all reasonable times without a warrant. They can seize, seal or detain any items in connection with offences under the Ordinance.
5. The Commissioner will keep a register on licenses and information on the register will be accessible to the public.

The Ordinance will help Customs identify the factories for the manufacture of optical discs, empower them to inspect these factories and ensure that the production of optical discs in these factories is lawful.

Business Software Alliance (BSA)

The Business Software Alliance is an international organization representing leading software and e-commerce developers in 65 countries around the world. Established in 1988, BSA has offices in the United States, Europe, and Asia.

As the "voice" of the software industry, BSA helps governments and consumers understand how software strengthens the economy, worker productivity and global development; and how its further expansion hinges on the successful fight against software piracy and Internet theft.

Their efforts include educating computer users about software copyrights; advocating public policy that fosters innovation and expands trade opportunities; and fighting software piracy.
Source: www.bsa.org/hongkong/about

Reference Web-site: http://www.bsa.org/hongkong

Control of Anti-circumvention Device

It attracts civil liability to a person who deals with anti-circumvention devices or publishes information enabling such circumvention. The electronic circumvention mechanism includes encryption or digital watermark as happens in DVD and musical recordings of Secure Digital Music Initiative (SDMI). In Hong Kong, we have the example of Cable TV decoder. Such Cable TV decorder can be bought in China at just around $300. No authorisation is given by Cable Television Limited, the sole broadcaster of Cable TV in Hong Kong, to connect the decorder to the programme cable. The connection violates the right of 'making available the works to the public'. 'Making available' includes making available through wire or wireless means. Cable TV is transmitted through wire means. The installation of the decorder and the receiving of the programme for watching is an infringement of Cable TV's rights.

Section 273 provides that the person issuing or making available the copies or the unfixed performance to the public has the same rights and remedies (as a copyright owner has in respect of an infringement of copyright) against a person who, knowing or having reason to believe that it will be used to make infringing copies or infringing fixations:

(a) makes, imports, exports, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire, or possesses for the purpose of, in the course of, or in connection with, any trade or business, any device or means specifically designed or adapted to circumvent the form of copy-protection employed; or
(b) publishes information intended to enable or assist persons to circumvent that form of copy-protection.

Based on the above provisions, cable programme service providers like Cable TV is entitled to take action against the home users of the unauthorised decorders as well as against the supplier of the decorder, which is known to be an anti-circumvention device. To enforce the rights, the cable programme service provider will encounter great difficulties as the infringement takes place inside private residence. It is not easy to detect and have evidence gathered. Therefore, Cable TV has recently announced to have the decorder replaced. The replacement cost amounts to billions of dollars.

Parallel Import

The present Copyright Ordinance outlaws parallel import ( ) of a copyright work. Goods of parallel import for the purpose of the Copyright Ordinance means a copy of that work which was lawfully manufactured in the country or territory where it was made. Such works, despite being authentic, are defined by the Ordinance as 'infringing copy'. According to the Ordinance, a copy of copyright work imported into Hong Kong by way of parallel import and which, if made in Hong Kong, would have either infringed the copyright in that work, or breached an exclusive licence agreement relating to the software, is regarded as an infringing copy.

Whether the goods so imported are 'infringing copy' has a time element, namely it only been published for 18 months or less.

Henceforth, if the works are so imported into Hong Kong and are possessed for the purpose of, in connection with or in the course of trade or business, it is a criminal offence. The penalty is just like possessing a 'pirated copy' of a work. The maximum penalty is $50,000 per infringing copy (which is in fact a copy so imported by parallel import) and 4 years imprisonment.

Goods having been published for more than 18 months will not attract criminal liability. It will nevertheless potentially attract civil liability under the trade mark laws.

In May, 2001, the Industry and Commerce Bureau has released for consultation a proposal to remove the criminal and civil liability elements on possession etc of computer programs imported into Hong Kong by parallel import. The proposal originated from the public's outcry of insufficient competitiveness of the market in computer programs. The consultation closes on 15 June 2001.