Recent Skype outage, apparently fault of a denial-of-service attack on the Skype centralized login infrastructure, raises again the intrinsic flaw of designing a service or an application (even partially) based on a centralized network topology.
As the recent facts show, offering a service with a Single Point of Failure creates a “domino effect” whose legal implications (in terms of damages suffered by paying clients) might bear unforeseen consequence. The “flawed-by-design” kind of liability might, indeed, lead to a class action against Skype for having knowingly chosen to build their service on a technical structural weakeness.
Of course, I imagine that should that issue be taken into Court, ICT expert witnesses will play the major role in addressing the underlying technical issues.
The “cease and desist” letters sent by Peppermint lawyers to the Internet users’ – whose identity has been dislosed by a questionable decision of the Court of Rome – allegedly infringing German label’s copyright contains a legal trick almost unnoticed that expose people to criminal investigations even after having paid what Peppermint’s lawyer ask for.
Peppermint scheme is easy (at least at first glance): you pay us 330 Euros, we file ? no legal action against you. The problem is that in Italy copyright’s infringment is a criminal offense and the Public Prosecutor can charge somebody even if the “damaged party” (Peppermint, in this case) states to having waived any claim.
Peppermint and its lawyers, than, cannot enter into an agreement that includes the waiving of ? such legal claim because they have no power to waive ALL the possible legal claim. But they completely fail to advise their counterpart on that issue.
The result is that people who already paid the 330 Euros, cannot rest in peace… or do they?
A side issue arising from the Peppermint affaire is the relationship between criminal and civil trials rule of evidence.
In a criminal investigation, access to ISP owned traffic data and log files is possible only with a public prosecutor search and seize warrant. One seized, these information are strictly confidential and cannot disclosed – even to the defense counsel – before the trial starts.
The very same data – as the Peppermint affaire shows – can indeed be obtained by a private entity alleging a civivl – not criminal, then – copyright infringement, just asking the civil court to force an ISP to disclose information.
This is a paradox of the Italian legal system, since criminal action is supposed to be the only reason to allow the breach of constitutional rights, while the a civil case only gives the court limited powers. This common-sense rule has been subverted when talking about copyright. Is it fair or acceptable?
As I mentioned in a previous post, Peppermint Records GmBH a German record label started a legal action against about 3.000 Italian internet users “accused” of illegally sharing its copyrighted material – namely, a song. The label was able to obtain a (questionable) court order to force a major Italian Telco to disclose the identity of the customers whose ADSL line was – allegedly – used to commit that “devious crime”.
Next step has been a flood of letters from an Italian law firm located in Bolzano (a place with a strong german-speaking minority – or, better, majority) asking, on behalf of Peppermint Record – for a compensation of 330,00 Euros, as sine qua to drop the legal action.
Continue reading “An update on the Peppermint affaire“
On Feb. 9, 2007 the Civil Court of Rome, under the Italian enforcement of the EU 2004/48 directive, issued a preliminary ruling (technically speaking, in Italian, “ordinanza cautelare”) ordering Telecom Italia to disclose the identity of about 3.000 people allegedly committing the “infamous” crime of exchanging copyrighted material through P2P network. The Court order was “backed” by a statement from the plaintiff – a German based recording label – claiming that a private cyber-investigation revealed that Telecom Italia’s users were involved in such illegal behaviour.
Continue reading “European Union, Copyright Lobbies and Italian ISP’s. The Big Brawl.”