Category: Copyright and IP

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An early reading of the Facebook v Business Competence trials

Unfair competition by feature plagiarism. The Courts of Milan issue two verdict that might pose severe problems to the software industry by Andrea Monti – originally published in Italian by Diritto di internet

The two judgments of the Tribunal  and the Court of appeal of Milan rewrite the parameters for the assessment of software duplication in the context of deceptive conduct by favouring the external appearance (interface and functionality) over the traditional approach based on the comparison of the analysis (design) and the source code (implementation/expressive method).

The opportunity missed by the judgments, based as to the an on external similarities of the two pieces of software at issue, is to indicate how Article 2(I)(8) (which excludes from copyright protection

the ideas and principles underlying any element of a program, including those underlying its interfaces. The term program also includes the preparatory material for the design of the program itself

 and Art. 45 of Legislative Decree 30/05 which, in paragraph II, excludes the legal protection of mathematical methods (i.e. algorithms).

The effects of these decisions on the software industry, historically based precisely on the replication of functionalities, and the structure of liability under industrial law are still to be assessed.

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Who owns your computer, and more importantly, can you trust it?

Operating systems and software manage the usability of machines by Andrea Monti – Originally published in Italian by Infosec.News

Adobe announces the end of Flash Player and that it will block content based on this standard, which is considered inherently unsafe and the subject of constant security updates.

It is a subject for another article to investigate why it was possible to allow such software (and those of other manufacturers) to burden and weaken computers around the world . For the time being, we are interested in the relationship between obsolescence management, licensing, the ‘ownership’ of a computer (or a smartphone or a tablet, or – when the IoT will, unfortunately, become a reality – any household appliance).

In short: buying a computer does not mean becoming its owner, because its usability depends on the strategies of operating systems and software’s producers to keep it running. The subject is certainly not new (Richard Stallman wrote about it at the dawn of free software), but today it has reached worrying dimensions.

Continue reading “Who owns your computer, and more importantly, can you trust it?”
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Project Gutenberg and the Crusader of Copyright

In the name of the new crusade against the “pirates of copyright” the public prosecutor of Rome seizes gutenberg.org, the site of the cultural project that digitizes and puts online copyright-free books. But neither the court nor the Guardia di Finanza has noticed. Is it a justifiable mistake? by Andrea Monti – originally published in Italian by Infosec.News
Continue reading “Project Gutenberg and the Crusader of Copyright”

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Platforms’ liability for news theft

by Andrea Monti (originally published in Italian by IlSole24Ore – May 1, 2020)

The criminal investigations against the unlawful distribution of newspapers, periodicals and books are interesting in several respects. Firstly, it is a step towards making those who commit a crime by hiding behind the screen of a smartphone, i.e. the user of a service, responsible for their course of action. Secondly, it focuses on “platforms”, i.e. those operators who “rely” on the access network to make profits and who therefore can immediately provide data to prosecutors and perform selective blocking. Thirdly, and as a consequence, it puts again on the table the issue of the actual (non) neutrality of platforms. EU Directive 31/00 is evident in this respect: operators who do not interfere in users’ behaviour must not perform pre-emptive monitoring. But those who, like platforms, are not “neutral” to those who use them should not be able to take advantage of this possibility, as has been happening for some time in Italy and Europe.

Hopefully, the European Union eventually decide to give platforms an autonomous legal status and liability. However, these criminal investigations create a legal precedent on another very technical but essential issue: the possibility of configuring a responsibility (whether under the criminal intent or other liability doctrines) for crime by design. The idea is simple: as in any human action, when somebody decides to do something, has to make sure that it does not cause damage and upholds the law. If somebody designs a platform (or a business model that exploits it) without mechanisms that prevent its illicit use, and the absence of these mechanisms is what makes my product/service successful, then he cannot deflect his liability.

In this specific case, therefore, it is necessary to understand the way Telegram works and assess, for example, if it is a provider of a press distribution service and then if the entire revenue generation model is based on service neutrality.

Finally, this case is the test-bed for that case law (Cass. penale, sez.II sent. 11959/20) that, after only twenty-five years from the first theoretical elaborations, finally recognizes the nature of “thing” to data and files. This jurisprudence opens the possibility to charge a defendant not only of copyright infringements but also of serious crimes such as money laundering or receiving stolen goods. In this case, it would be possible to claim more substantial charges for the perpetrators of the offences, and more dissuasive for those who have “nasty thoughts”.

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COVID-19: Italian Contact Tracing App poses security concerns

Ordinance 10/2020 of the Extraordinary Commissioner for the implementation and coordination of measures to contain and combat the epidemiological emergency COVID-19 writes the final word in the chapter “Tracking yes, tracking no”. Italy wasted months idling on the decision to enforce a people’s tracking system. However, now the Government made up its mind and decided to us an “app” licensed free of charge by the developer. At the same time, however, the Commissioner’s Ordinance leaves untold some things related, in particular, to the security of the software, which, given the criticality of the moment, should have been a central element in the selection of the product.

Let’s start from strictly legal aspects: the company that developed the contact tracing software, as the Ordinance verbatim says,

solely out of a spirit of solidarity and, therefore, for the sole purpose of providing its contribution, both voluntary and personal, useful to deal with the ongoing COVID-19 emergency, has expressed its willingness to grant an open, free and perpetual licence to the Extraordinary Commissioner for the implementation and coordination of measures to contain and combat the COVID-19 epidemiological emergency and to the Presidency of the Council of Ministers, the source code and all the application components of the contact tracing system already developed, as well as, for the same reasons and always free of charge, has expressed its willingness to complete the IT developments that will be necessary to allow the national digital contact tracing system to start working. Continue reading “COVID-19: Italian Contact Tracing App poses security concerns”