Category: Copyright

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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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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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Danny Monzeroll, Youtube and Copyright

Every now and then – thank to Youtube – I discover some mind-blowing musician I didn’t know about as it just happened with Canadian, Montreal based artist Danny Monzeroll.

His Pink Floyd songs arrangement for solo classical guitar is nothing but brilliant in terms of composition, execution and recording and – yes – it is freely available on Youtube. While, then, it would have been easy to “forget” about author’s right to be compensated for his work I decided to buy the album as a way to thank Mr. Monzeroll for his masterpiece. Continue reading “Danny Monzeroll, Youtube and Copyright”

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The Netflix-NeonGenesis Evangelion case – Moral Right of Author and limits to dialogues adaptation

The apparently marginal case of the removal from Netflix Italia of the poor adaptation of NeonGenesis Evangelion’s dialogue,s poses, in reality, a serious problem of moral Right of Author: that of the mutilation of the creative work.

Fact: Netflix commissions the rewriting of the dialogues of the Italian version of a very famous Japanese animation series: NeonGenesis Evangelion (新世紀エヴァンゲリオン). The dialogist – this is the professional figure who carries out this task – delivered such a poor result – in the audience’s perception – that Netflix decided to suspend the publication of the series waiting to repair the damage. Continue reading “The Netflix-NeonGenesis Evangelion case – Moral Right of Author and limits to dialogues adaptation”