Google Drive vs Dropbox: who owns your stuff?

April 25, 2012 by Leave a comment

Who owns the data you store on Google’s new cloud-based storage service (and so-called “Dropbox-killer”), Google Drive?

Following the announcement of Google Drive, a number of people suggested that (unlike Dropbox) Google’s terms and conditions give it “ownership” of the data you store on the service. However, these claims are confusing two separate issues: ownership, and scope of licence.

Google’s terms are, in fact, explicit on the ownership of users’ content (a point that seems to have been overlooked by some of its critics):

Some of our Services allow you to submit content. You retain ownership of any intellectual property rights that you hold in that content. In short, what belongs to you stays yours.

Users do give Google a very wide-ranging licence in respect of that content:

When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide licence to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes that we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content.

But even this is not completely unrestricted:

The rights that you grant in this licence are for the limited purpose of operating, promoting and improving our Services, and to develop new ones.

Anyone with a Google account has already given Google this licence in respect of other services. In some cases, such as Gmail, this licence will cover a lot of material that they would no doubt consider highly sensitive, and certainly not something they would want Google to “communicate, publish, publicly perform, publicly display and distribute”. Google Drive is likely to hold equally sensitive information that currently sits on users’ hard drives.

Google’s licence terms have been compared with those of Dropbox, who have had their own problems over their ownership and licensing terms in the past, but whose terms and conditions now state that:

You retain full ownership to your stuff. We don’t claim any ownership to any of it. These Terms do not grant us any rights to your stuff or intellectual property except for the limited rights that are needed to run the Services, as explained below.

We may need your permission to do things you ask us to do with your stuff, for example, hosting your files, or sharing them at your direction. This includes product features visible to you, for example, image thumbnails or document previews. It also includes design choices we make to technically administer our Services, for example, how we redundantly backup data to keep it safe. You give us the permissions we need to do those things solely to provide the Services.

In practice, the scope of this licence is probably not vastly different from the one in Google’s terms, but it reads more reassuringly for customers, emphasising throughout the “limited” nature of these rights, which are “solely” to provide the services.

What can other web-based, consumer-facing businesses learn from this?

  1. Don’t neglect the legal terms when launching a new product. Yes, I know, I would say that – but Google’s error appears to have been to launch a new product without considering how its existing legal terms would apply (or be perceived to apply) to a product that gives them access to a lot of data previously unavailable to them.
  2. People are highly sensitive about content ownership and licensing – and rightly so, though often I find people (even in a business setting) focus too much on “ownership” and not enough on “scope of use”, which in practice is usually more important. As we’ve seen, Google’s terms are actually clear on ownership of data, but their licensing terms are phrased in such a way that leads many to consider that in practice Google is as good as claiming ownership anyway.
  3. Legalese can backfire. The problem with Google’s terms is that they are phrased in a very “legalistic” way. Lawyers may be able to pick the bones out of verbiage like “use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute”, but many users just read this as “all your content are belong to us”. Dropbox learned the hard way that saying simply, in plain English, what you need and intend to do, making it clear that you understand the potential concerns, is the only way to get customers to trust you. It will be interesting to see how Google responds to this same message from customers.

Filed under Contracts and T&Cs, Intellectual Property Rights Tagged with , ,

Olympic advertising divide?

March 13, 2012 by Leave a comment

I’ve discussed before both here and elsewhere the  rules on advertising around Olympic and Paralympic venues later this year.

However, other rules on advertising will have an even more widespread effect, in particular the ban on all forms of “association” of brands with the London Olympics – even if the “association” is done indirectly, through the use of phrases such as “Summer 2012″.

I’ve written an article for the Guardian Media Network on this issue, which is available here: 2012 Olympics: advertisers beware overstepping the line.

Filed under Regulatory Issues Tagged with , , , ,

Breaching advertising guidelines? You’re not when you’re #spon

March 7, 2012 by Leave a comment

A marketing campaign by confectionary giant Mars has been cleared by the Advertising Standards Authority (ASA) in its first investigation involving social networking site Twitter.

The ASA launched its investigation after receiving complaints regarding a chain of bizarre economy and knitting-related tweets sent in January from the official accounts of the footballer Rio Ferdinand and model Katie Price followed by a final Snickers tweet and a photograph.

On January 24 the Manchester United defender tweeted “Really getting into the knitting!!! Helps me relax after high-pressure world of the Premiership”.  In further postings, he added “Can’t wait 2 get home from training and finish that cardigan”; “Just popping out 2 get more wool!!!”; “Cardy finished. Now 4 the matching mittens!!!”

His fifth tweet read “You’re not you when you’re hungry @snickersUk #hungry #spon”.

In Price’s tweets she wrote about subjects such as the eurozone debt crisis, China’s GDP figures and the economic concept of quantitative easing before finally tweeting a picture of herself holding a Snickers bar with the same message as Ferdiand’s “You’re not you when you’re hungry @snickersUk #hungry #spon”.

In making its decision, the ASA considered two points: (a) whether it should have been stated in the first four ‘teaser’ tweets that they were marketing communications and (b) whether the hashtag “#spon” in the final ‘reveal’ tweet made it clear enough that that tweet was a marketing communication.

Responding to the complaints, Mars said that it had “considered in detail” the extent to which the tweets were marketing communications and believed only the last one needed to be identified. Mars argued consumers could not have been misled into making a purchase by the first four tweets as their meaning only became apparent once the campaign was revealed with the fifth message.

The ASA accepted Mars’ argument that the tweets contained the hashtag “#spon” to indicate sponsored content but it disagreed with Mars that the first four only became marketing communications after the final tweet was posted and stated that all five tweets should be considered to be part of an “orchestrated advertising campaign”.

However, the ASA said the final tweet was clearly highlighted as an advertising campaign and that having seen the final ‘reveal’ tweet consumers would understand that the series of tweets were part of a marketing communication. It held that it was acceptable that the first four tweets were not individually labelled as being part of the overall marketing communication and concluded that the ads did not breach the CAP code.

This investigation highlights the importance of disclosing paid-for promotions in all forms of advertising media including blogs, posts and microblogs like Twitter. Whether this is by using hashtags such as #spon, #paid-promotion or #advert or some other statement, in order to avoid breaching advertising legislation, promoters should ensure that consumers understand when they are reading paid-for promotional content regardless of the media through which that content is being displayed.

Filed under Regulatory Issues Tagged with , , , , , ,

Talking Olympic advertising

January 26, 2012 by Leave a comment

In a recent post, I discussed the laws prohibiting advertising activity round Olympic venues in the summer.

One of the affected venues is the Ricoh Arena in Coventry, which will be renamed the City of Coventry Stadium for use in Olympic football matches. Shane O’Connor from BBC Radio Coventry & Warwickshire interviewed me at 7.40 this morning to talk about the law behind these advertising restrictions. Here’s a recording of our conversation:

Filed under Regulatory Issues Tagged with , , , , ,

Photographic copyright: higher but wider?

January 25, 2012 by Leave a comment

The IP Kat blog has an interesting discussion of copyright infringement of photographs.

To cut a long story short, the High Court was asked to judge on whether copyright in the following image (created by a Mr Fielder, with the copyright owned by Temple Island Collections):

was infringed by the following image (used by New English Teas on the packaging for one of their products):

The court decided that the answer was yes, since the creators of the second image has been aware of the existence of the first image, and were unable to show they hadn’t copied it.

The case highlights a couple of points of general application.

1. Copyright in photographs

The court confirmed that a photograph will only attract copyright if it is the photographer’s own “intellectual creation”, and the judge suggested three aspects which could make a photograph “original”:

  • “specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on”;
  • “creation of the scene to be photographed”;
  • “being in the right place at the right time”.

In this case, the court had no difficulty finding that the first image was Mr Fielder’s own intellectual creation, by reason of its composition and the visual contrasts involved. However, this is a long way from the traditional English law approach in which (as one IP textbook puts it) “pointing the camera at a subject and pressing the shutter” was considered enough to gain copyright protection.

This suggests that many photographs over which copyright is asserted may in fact fall outside the scope of its protection – though elements such as “being in the right place at the right time” would still seem to cast the net quite widely.

2. Infringing copyright in photographs

Again the traditional approach has been that infringing copyright in a photograph involved actually reproducing that photograph (or a substantial part of it). There was nothing to stop you taking your own photograph which happened to incorporate the same features as another image. As the IP Kat observes, this does seem to extend the scope of protection for photographs to include “an idea, a lay-out or a scheme for such a photograph”.

For this reason, it may be that the losing party in this case will hop on the next bus (sorry…) to the Court of Appeal. In the meantime, though, this case highlights some interesting issues in what can be a very sensitive area for photographers: on the one hand confirming that the bar for copyright protection is higher than previously thought, but on the other suggesting that the scope of protection, if acquired at all, may be wider than previously thought.

Filed under Intellectual Property Rights Tagged with , , ,

Olympic advertising ban: a pre-emptive ambush?

December 12, 2011 by Leave a comment

One of the key measures proposed to protect the interests of sponsors for the 2012 London Olympics and Paralympics is a prohibition on unauthorised advertising, including “ambush advertising”, around Olympic event sites.

The regulations imposing this advertising ban have now been implemented, as The London Olympic Games and Paralympic Games (Advertising and Trading) (England) Regulations 2011, and the LOCOG website has guidance on the regulations and how to comply with them. Crucially, this includes the maps of the “event zones” where advertising will be banned around the time of the Games.

The ban will apply for different periods for each event zone, as listed in Schedule 2 to the regulations, with the longest ban being around the Olympic Park itself: from 23 July to 13 August (for the Olympic Games), and then from 28 August to 9 September (for the Paralympic Games).

Anyone wishing to display advertisements within event zones during the relevant period (including existing traders) will need prior authorisation from LOCOG.

The types of “advertising activity” banned under the regulations are very broad, ranging from conventional billboards and signs to leaflet distributions and even the wearing of “advertising attire”.The thoroughness of the regulations is perhaps best shown by their express application of the ban to:

(i) an advertisement to be displayed on an animal, or

(ii) an apparatus by which an advertisement is displayed to be carried or held by an animal.

The mind boggles.

There is an exemption for people (though not for animals!) wearing clothes which carry advertisements, provided this isn’t part of an ambush marketing campaign, and also for “not-for-profit bodies”.

The regulations have been attacked by both advertisers and campaigners as “draconian” and an assault on freedom of expression. LOCOG, however, argues that the rules will “not only help protect the investment of sponsors”, but are also intended to ensure “a welcoming environment for spectators”.

Filed under Regulatory Issues Tagged with , , , ,

How distinctive is the App Store?

March 23, 2011 by Leave a comment

Amazon has launched an “Appstore” selling applications for the Android mobile phone operating system. In response, Apple is suing Amazon in the US claiming that Amazon’s Appstore will “confuse and mislead customers” due to the similarity in name with Apple’s own App Store.

Apple has not yet been able to register App Store as a trademark in the US (and its application to do so is being opposed by Microsoft). However, APP STORE is registered as a European Community trade mark, effective from 21 July 2008. If Amazon were to launch their Appstore in the EU – and currently there is no information on if and when this will happen – then Apple would presumably want to bring trade mark infringement proceedings against Amazon.

To be honest, I’m amazed that Apple were able to register APP STORE as a trade mark. A mark must be distinctive in order to be capable of registration as a Community (or for that matter EU national) trade mark. In the words of the Community Trade Mark Regulation, it must be “capable of distinguishing the goods or services of one undertaking from those of other undertakings”. In particular a mark cannot be registered if it:

consist[s] exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service.

To register APP STORE for the sale of computer software applications (that is, “apps”) is, to my mind, on a level with registering SHOE SHOP for the sale of footwear. No doubt Amazon’s defence to a claim would consist (in part) of a vigorous assertion that the mark should be revoked.

Against that, it is sometimes argued (though not, as far as I’m aware, by Apple itself) that Apple invented the word “app” in relation to software. There are two responses to this:

  1. Who invented the word isn’t relevant to whether it’s a valid trade mark. Even if Apple invented the word “app” for software, it is still widely used (even by Apple!) in a generic sense.
  2. It’s not true that Apple invented the word anyway: it’s not hard to find examples from before 2008 of the word “app” being used for software, particularly in the free/open source software world.

I do need to add a lawyerly disclaimer here. I am emphatically not arguing that readers of this blog post should rush out and start using the name “App Store”, confident in the knowledge that Apple’s trade mark registration is invalid. Apple could still run other arguments (such as a “passing off” claim), and would argue with equal vigour that their trade mark should stand (for example, on grounds of “acquired distinctiveness”). If you want to take on the world’s second largest company on an issue like this, be my guest – but take legal advice first…

Filed under Intellectual Property Rights Tagged with , , ,

Don’t send a licence agreement to do a service agreement’s job

February 3, 2011 by Leave a comment

In recent years, many software vendors have changed over from a traditional licensing model (where software is installed on their clients’ computer systems) to a “cloud” model in which they provide a hosted service.

However, I regularly see contracts from these “traditional-to-cloud” vendors that have clearly not changed from the days when they were licensing locally-installed software. The agreements continue to read as if customers will have the software installed on their own systems, and fail to address the fact that the software is now being provided as a hosted service.

This has a number of consequences:

1. Service levels aren’t clearly agreed

A traditional software licence will not cover issues such as availability and uptime. This can lead to disputes where there is a mismatch between the customer’s expectations of a 100%, 24 x 7 x 365 service, and what the service provider can actually deliver.

In short, the contract fails at one of its fundamental purposes: setting out what the supplier has agreed to provide and the customer has agreed to pay for.

2. Customer misuse isn’t addressed

A traditional licence will often require the customer not to reverse-engineer or decompile the software or not to install it on unauthorised hardware – actions that are literally impossible with a cloud-based service. However, it may not concern itself with the everyday use the customer makes of the software: whether the customer is breaching data protection laws or third-party intellectual property rights.

However, a hosted service provider is taking responsibility for holding customer data. That data may infringe other people’s rights. Even if it doesn’t, the provider is still exposing itself to liability for taking proper care of its customer’s data, in a way in never did previously.

The customer’s users may also engage in other misuse, using the system to transmit illegal or unethical material that can cause reputational damage or legal liability for the service provider.

If the contract fails to take account of these issues, the service provider could face significant legal exposure.

3. Liability may not be limited

Limitation of liability is a critical contract provision for most suppliers. In order for the supplier to be protected as intended, any limitation of liability provisions need to be drafted so they actually cover the type of liability that might arise, and in most cases they need to be reasonable in their scope.

The risks to the supplier under a service provision arrangement are very different from those in a software licence. The supplier will be hosting the customer’s data and will be responsible for maintaining continuity of access, in a way that is unlikely to have been the case under a software licence.

If the limitation of liability do not take all that into account, the supplier could end up facing unlimited liability should any problems arise.

4. Deals are delayed

Where a contract is inappropriate, customers are more likely to question the terms and push back for changes. The process of agreeing the contract becomes more protracted – it may even result in the service provider carrying out large amounts of work “on risk”, as the contract continues to be negotiated.

Setting out reasonable terms that reflect the reality of what is being provided are the best way to ensure that contracts can be concluded quickly, without the legal tail wagging the commercial dog.

5. It just looks bad

If you went to rent a house, and the landlord produced a contract saying that they were selling it to you, you’d object. The difference between licensing software and provided a hosted service is no less fundamental, and a contract that fails to recognise this can leave both the service provider and client exposed.

As a result, using the wrong type of contract can cause reputational damage to a service provider. Customers are left with the impression that the service provider doesn’t really understand the business that they’re operating.

Conclusion

Whether software is being licensed or provided as a hosted service, agreeing the contract should be neither box-ticking nor an exercise in legal pedantry.

What counts is making sure that the contract reflects reality and deals appropriately with the key risks for each party – and that the process of agreeing the contract (often at least as important as the contract itself) flushes out issues that might otherwise cause problems down the line, and doesn’t become an obstacle to concluding the deal.

Filed under Contracts and T&Cs Tagged with , ,

easyDispute over trade mark

July 21, 2010 by Leave a comment

My colleague Ed Weeks (on his Boardroom Disputes blog) has written a number of times over the past couple of years on the dispute between Sir Stelios Haji-Ioannou and the easyJet board.

This dispute has now developed an intellectual property angle, with Sir Stelios threatening to terminate the airline’s licence to use the “easyJet” trade mark. The trade mark is owned by Sir Stelios’ company easyGroup IP Licensing Limited, and is licensed to easyJet Airline Company Limited under an agreement which Sir Stelios is now threatening to terminate.

easyGroup has issued a “cure notice” to easyJet threatening to terminate the licence agreement unless there is an improvement in easyJet’s punctuality record within the next 90 days. This follows newspaper reports that fewer than 50 per cent of easyJet flights from Gatwick were on time in June.

Should easyGroup proceed to terminate easyJet’s licence, the result would undoubtedly be a huge court battle, given the importance of the easyJet name for the airline. I doubt that the licence agreement contains an express right to terminate for poor punctuality performance: presumably easyGroup are relying on more general obligations, as typically found in trade mark licences, for the licensee to provide services under the licensed mark to a high standard and not to bring the trade mark (or its owners) into disrepute.

Given the risks to both sides of this course of action, I would be very surprised if the licence were terminated. More likely this is being used by Sir Stelios as leverage in his long-running battles with the easyJet board.

Sir Stelios’ ire has no doubt only been increased by the way in which his own personal name and image have been dragged into the controversy over easyJet’s punctuality (and its reluctance to release its performance figures) by easyJet’s main competitor, Ryanair. Ryanair apologised for its ads referring to him as “easy Jet’s Mr Late Again”, but its newspaper ads printing this apology provided another opportunity for it to take a dig at easyJet.

As a final observation, I notice that the Telegraph news item refers to Sir Stelios threatening to remove “the easy brand name”. easyGroup – which owns a large number of trade marks which include “easy” as a prefix – has made a number of attempts over the years to claim the name “easy” itself as a trade mark, without success. I wonder if easyGroup have taken the opportunity themselves to provide a small boost for their claim to “easy” as a brand name.

Filed under Intellectual Property Rights Tagged with , , , ,

“I have read, understood and agree to… unfair treatment?”

July 9, 2010 by Leave a comment

Go to almost any website selling goods or services online, and at some point in the transaction process you are likely to find a statement along the following lines:

I confirm that I have read, understood and agree to the terms and conditions [link].

The FSA has released a guidance note (PDF) stating that, in their view, this declaration is “unfair” under the Unfair Terms in Consumer Contracts Regulations 1999 (“Unfair Terms Regulations”). As the FSA put it:

Firms should draft contracts in plain and intelligible language and must also give consumers a proper opportunity to read all the terms of the contract. Consumers should check the details of the contracts they enter into. But a contract term requiring consumers to declare that they have read and understood the terms of the contract is likely to be unfair because it binds customers to terms which, in practice, they may not have any real awareness of.

While this guidance relates specifically to financial services, it is consistent with the OFT’s guidance on consumer contracts generally. Online sellers, especially those dealing with consumers rather than business customers, should therefore consider wording along the lines of the FSA’s proposed alternative for such declarations. For an online seller this might read:

These are our standard terms and conditions [link] upon which we intend to rely. For your own benefit and protection you should read these terms carefully before signing them. If you do not understand any point please ask for further information.

Sellers should also ensure that they review their online consumer contracts carefully to ensure the terms themselves comply with the Unfair Terms Regulations. To assist in this, the OFT has produced a number of guidance documents. These include their Unfair Contract Terms Guidance (PDF) and its annexes giving specific examples of unfair terms (PDF), as well as specific guidance for a number of sectors.

Filed under Contracts and T&Cs Tagged with , , ,

← Older posts

Follow

Get every new post delivered to your Inbox.

Join 381 other followers