back to article Content 'made available' in jurisdiction where server is located

A company is responsible for 'making available' internet-hosted material in the country where its host server is based, not in the country where the material is read or used, the High Court has said. The Court ruled that the law should be applied to material hosted on the internet in the same way that it applies to satellite …

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Happy

Uncommonly sensible.

The quote : "By those provisions the place where the act of broadcast occurs is where the signals are introduced under the control of the person making the broadcast into an uninterrupted chain of communication." is unusually clear and is jsut about the only sensible way I can see to look at this issue, despite the negative consequences that may arise.

Does this mean that we may see an end to the sort of cases that rest on an offence being commited just because a Brit viewed the material here?

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Uncommonly Huge

Data has "always" followed Maritime Law, because it was in the Seller's best interest. Truthfully, Sellers managed to sneak this one in before Governments and Courts realized that Jurisdiction was necessary (A Seller lie ? Whoa, that will never happen).

Microsoft once had a Marketing Slogan "Where do you want to go today ?". Translation: Go to our servers and find out.

But people unconstrained by only thinking what judges have always thought were on to the Sellers trick for some time now

http://www.un.int/kamal/thelawofcyberspace/index.htm (Notice it's a UN Publication)

It's perfectly practical to put Cyber-Space in an appropriate Court Room, you just have to make Multi-Nationals submit to SOME land based jurisdiction first (getting them to pay taxes should be motivation enough for Governments).

http://www.rustprivacy.org/sun/spookville/federal/

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Libel

Does this have implications for libel?

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Pint

Very interesting judgement and equally interesting implications

Given that US has decided it is the arbiter of everything and as such all disputes it deems fit will be heard in it's courts there are interesting ramifications. Both Canada and the US use the Common Law principle of justice and often reference is made to rulings in other similar judicial systems.

It could be implied if someone in Canada who was caught with plagiarised material downloaded from the UK might have a defence to some charges that can be laid, although Canada has some very indulgent copyright rules.

Another interesting thing to discover is if Fred Bloggs, in the UK, is forwarding material to Big Daddy servers in the U.S. for 'broadcasting' IF Fred can walk away from charges in the UK?

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Stop the press!

Judicary issue common sense judgement!

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Will this also apply to Libel cases?

Probably not, but we can but hope.

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Grenade

A couple of thoughts

1/ "...their copyrights and database rights when it published live football data on the internet..."

How can you have copyright on a football score? A football score (even if the game is on-going) is a matter of fact. There is no artistic value in a fact. It just is. As far as I know, copyright does not extend to facts.

2/ The ruling is very interesting in itself. About 5 years ago, there was a high profile case involving two companies that were selling R18 (ie porm) DVDs over the internet. In the UK, R18 material may only be legally sold from a licensed premises (a nice money-earner for the local council, but I digress). Their defence was that they owned licensed premises and distributed the DVDs from there. The case was brought by Trading Standards, and the argument they used was that the point of sale was actually the computer that was used to make the purchase; ie - usually someone's home. The 'home' was obviously not a licensed premises and therefore the sale was illegal. The court agreed with Trading Standards and the two companies concerned were fined a small fortune; the "point of sale" was declared (rather bizarrely) to be the 'home'.

In addition to this, (and I can't remember if it was part of the same ruling or it was a different case), there is also a UK law that prevents the legal advertising of a foreign website selling R18 stuff. So if you run a web site in the UK, you can not legally include a link that says "get your porn here" to another web site based in (say) The Netherlands where your customers can then buy R18. Even it was, the "point of sale" is still the 'home' (not quite sure where this legally leaves the buyer, by the way).

This new ruling would seem (at least in part) to contradict this older case.

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Anonymous Coward

data sourced from mirror servers

Is this addressed by this ruling?

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Almost makes sense

That's scary, common sense being used in a judgement. If this is what's previously been applied to TV and radio then it's good to extend it to other media such as the web.

I wonder if/when we'll see a libel case attempt to use this as a precedent? If it's not on a UK-based server and wasn't placed on that server from a machine in the UK then it's not our jurisdiction.

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Is it me...

Or does that seem like a sensible decision?

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Coffee/keyboard

Odd Decision

Nothing. Absolutely nothing, is broadcast on the internet. Not one byte.

Everything is sent as a point to point communications, generally initiated by the recipient (a 'pull' model of operation).

Multicasting never took off because ISPs couldn't find a way to make money out of it. Push content mostly failed because it didn't fit the internet demand driven pull model.

Incidentally this could be great news for P2P file sharers. Apparently infringement only occurs in the territory where the file is made available, regardless of the location of the infringer?. So if you simply host your warez site in a dodgy third world shit hole it doesn't matter if you live in Mandela House, Peckham.

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Anonymous Coward

re: nothing is broadcast on the internet

Technically true, but I think it's more the concept of making something widely available /as if it were broadcast/ that is addressed here.

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Nothing..

Multicast, nuff said.

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Does this also apply to libel?

It's a major change if it applies to libel - it means people can't do the "libel tourists" bit by suing under UK libel law for material published elsewhere.

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Anonymous Coward

libel tourism

I wonder if someone can use this judgement to stop a lot of libel tourism cases. Were the material is hosted in another country.

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Brilliant

So those fansites who've been clobbered and restricted from displaying the footy fixtures just need to stick the relevant pages on Amazon S3, and embed them on their existing site in an IFRAME.

Screw you, football dataco, for trying to make money out of a list of simple statements of fact!

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Re: Brilliant

Possibly not.

I guess you would still be liable as you are controlling the site from the UK and uploading data from the UK to the remote server.

Still, it's a nice thought you have there, and we can only hope it works out that you are correct.

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Sense at last?

I hate the way that some people seem to suggest that everything internet based is completely new and cannot be addressed by existing laws. It has been possible to carry out crime remotely over international borders since the invention of the post. Nothing is new. Surely this would be the same service if the bookies rang a Swiss phone number to get the results or had an employee post a book published in Switzerland.

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does this cover other copyrighted material?

Can we go and download our music from allofmp3, sorry, alltunes, now?

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As if

I was wondering the exact same thing. And then I realised where I'm living and that the answer is "no".

I'm more interested in how this will be resolved in the case of cloud computing where the data and servers may not be in the same country - or even permanently reside in the same country.

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FAIL

Even ignoring the issue of where the server is based....

... surely football scores and other sports results can be considered as 'news'. Surely sports results cannot be 'owned' by the sports federation organising the event.?

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Anonymous Coward

Fixture Data

The "data" in question was football fixture lists. Until the game has actually been played, they are not statements of fact. The betting houses which used the data were doing so before the games were played.

I don't think there was ever any issue with the use of the results.

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Thank God

It's high time this view was adopted!

Countries can AND DO censor what data can be accessed from foreign sites. Thus it is the responsibility of the country to prevent the importation of material it views as illegal.

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Not a lawyer, but

How would this apply to internet video streaming? Does that mean that if it's legal to send out a stream (from e.g. Russia) then the hosting company could not face legal action?

If so, expect a streaming site (like justin.tv or something) to be setup in a safe jurisdiction pronto. Sure, the person streaming up to it will be an infringer, but they will be harder to catch, and likely a man of straw.

It could also result in the BBC opening up iPlayer to foreigners.

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iPlayer

The BBC will have its hands tied by contractual obligations. When it buys the rights to put shows on iPlayer, it will be buying UK rights only and the contract will say they can't stream it overseas. They don't have a copyright licence to stream overseas, therefore it is a copyright infringement in the UK to do so from their UK based servers.

When they licence overseas rights to shows like Top Gear, they will agree not to stream it on iPlayer to people in those countries. If they do, they can be sued for contract violation, not breach of copyright as they are the copyright holder.

In summary, this will make no difference to the BBC.

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Coat

VAT

Anyone want to think through the VAT implications of such a ruling?

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Re: VAT

The e-commerce directive already covers this. If an overseas company sells things that are delivered online, they must register for VAT in an EU country of their choice and charge the UK VAT rate to UK customers. An EU company can charge their home country's VAT rate to everyone in the EU, so companies generally set up shop in Luxembourg which has the lowest VAT rate.

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Court agreed? Or disagreed?

"The Court agreed, saying that the making available takes place where the server is, even if the use of material takes place somewhere else."

Erm, shouldn't that be disagreed? Or am I missing something?

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Allofmp3?

I guess that means Allofmp3 was OK after all, as they had complied with the relevant Russian legislation.

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Hmmm

I find it interesting that UK users of the live football data are legally allowed to access it. Contrast this with the view taken against copyright infringers who download material from foreign servers.

Is the difference simply that copyright legalese has been slapped on the original movie/song/etc?

Is it therefore possible for Football Dataco et al to attach a copyright notice to the fixture lists and get the same protection?

I know it's a bit of a grey area as regards the point of whether fixture lists are a statement of fact or not (I would guess there is some originality to them and thus may be given some protection, however, once a fixture has actually been played, it becomes a non-copyrightable fact).

Of course, I am not a lawyer...

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Anonymous Coward

re: Hmmm

The prosecution that was partially disallowed was against the company that was making the data available - Football Dataco could presumably still go after people who violated copyright making an unauthorised copy of that data by downloading it in the UK.

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Criminal Law is is different

In the case of Graham Waddon at Southwark Crown Court in 1999, which was about the publication of obscene material, HH Judge Hardy decided that the place of publication was the location from which material was uploaded (in that case, the UK) and not the location of the server (the US). This view was upheld on appeal. 2000 AllER (D) 502

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Sensible decision? Shurly shome mishtake.

Otherwise he'd be saying it would be ok for <insert repressive Middle Eastern country> to prosecute UK sites showing any part of a woman. Like that Eee PC model, for example. Mmmm.

And a million-and-one other examples....

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Sir

A victory for common sense, commemorated by a fly-by from the pig-squadron - it's that rare these days.

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Shared hosts and twitter?

I have a website on a shared host. I don't have the remotest clue where the server might be located. Should I expect to be extradited to some country I have barely heard of because something I said blaspemes their local god?

Also, does this affect the Twitter martyr(s)? If the comments are "published" via a Finnish data centre does UK law apply?

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Commonsense prevails

This smacks of an attempt at protectionism by the Scottish and English football leagues, anyone with half a brain would take the commonsense approach which the judge has also settled upon.

Just a case of the leagues, trying it on, they knew it must have been a very tenuous case, trying to apply copyright laws of the UK to a company with equipment in a different country.

The judge made the right decision. Let's hope the music producers/publishers also take note of this judgement.

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Anonymous Coward

Are football scores really facts?

I don't think it's obvious that a football score is a fact. You could argue that a football score is something created by the FA by someone working for them (the referee).

There are definitely facts (like the number of times the ball crosses the goal line), but the score is determined by the referee, since the ball crossing the line does not determine whether a goal has been scored (and sometimes goals are scored without the ball crossing the goal line).

The most obvious example is when the referee disallows a goal which should have stood, or says that a goal happened when it clearly didn't. In that case, the referee's ruling stands, even if the facts clearly show something else.

Similarly, the scorer of a goal is decided by the FA. Most of the time it is obviously the person who put the ball into the goal, but some of the time it is not that clear cut.

So, if you were to argue that you were publishing a set of football scores as factual information, you would have to show how they were independent of interpretation by the FA.

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Another angle...

Check out this article for more info on what Sportradar do: http://www.bbc.co.uk/news/world-europe-11789671. Could this whole case be driven by certain interested parties who don't want betting fraud discovered?

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Anonymous Coward

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"Until the game has actually been played, they are not statements of fact."

I'm not sure that's completely correct. If it were, then magazines would be unable to publish TV schedules until after the programs had begun transmission.

By my reckoning, if team A has been scheduled to play team B on a certain date, then the time, date and participants *is* the statement of a fact about an intention to play, and can therefore be reported as news. Circumstances could possibly arise that change that later, but unless and until the circumstances change, the schedule remains factual.

But that's probably nitpicking. If a *list* of fixtures is published, the publisher owns copyright to THE LIST but not the individual facts contained within it. A third party can legally compile their *own* list by phoning each club and asking who they are playing and when. From that, they can legally compile their own list. But the cannot, legally, copy the original list -- they must independently compile their own.

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