Scuffle with ‘scofflaws’
August 8, 2005 | 12:00am
Throughout the global telecommunity, countries have tried to deal with the issue of copyright infringement in different fashions. On the Internet, the sex industry is quite popular and has been at the forefront of important Internet developments including online payment systems, affiliate programs, novel advertising strategies and more.
I received four e-mails that requested some writeup about Internet content liability. One of the senders, an engineering student, suggested a piece on what I call "scofflaws," or Internet violators, which have been growing by leaps and bounds.
Playboy Enterprises Inc., which publishes the magazine Playboy, has been one of the more active players in Internet law, filing quite a number of lawsuits in the global judicial arena, against people and companies that use the famous adult entertainment publisher’s intellectual property in cyberspace without securing permission.
Intellectual property, as we all know, includes copyrights such as photographs of nude models and trademarks such as the Playboy and Playmate names.
Though Playboy is among the more active players on the online adult world, it is considered a docile player. For one thing, it has to maintain a large library of high-quality content which is very important for the success of any publisher, particularly on the web. Popularity, however, has its downside for while imitation is considered as the greatest form of flattery, the entity being imitated is certainly not in business to give away its content ex gratia.
Hence, any individual or entity that copies any of Playboy’s photos for their own websites either through the method of scanning images from the printed Playboy magazine, or copying the images from its site, Playboy acquires a cause of action right then and there. And Playboy has never hesitated to enforce its rights. Why not, it’s considerably profitable.
One of Playboy’s celebrated copyright infringement cases was Playboy vs. Sanfilippo, the respondent owning a company called Five Senses. The complaint alleged that Francesco Sanfilippo operated a website through which he provided and sold access to thousands of copyrighted photographs owned by Playboy. Sanfilippo’s website, like many sites with pornographic content, was divided into the public and the private sections. The public or what is called the free section advertised images obtainable in the private area accessible to those who bought the password from Sanfilippo.
This happened in October 1996. Cease and desist letters were first sent by Playboy’s lawyers to Sanfilippo, but in spite of the fact that the latter acknowledged that some of the images on his website were scanned directly from Playboy magazine, and even answered the last "Cease and Desist Within 24 Hours" notice, the guy just brazenly did not do so.
Playboy sued for a staggering amount of $285,420,000 computing the amount on the basis of 1,699 images based on the maximum award that the California court gives for willful copyright infringement. What was awarded was nowhere close to the above figure, but the amount was still sizeable at $3,737,500.
One noteworthy aspect is this – in the past, quite a number of people might have been able to get away with copyright infringement because the copyright owner was oblivious to what was happening, for instance, if someone copied photographs and used them in a press advertisement in another country. But because of the great phenomenon that the world wide web is – meaning, available worldwide and accessible so easily – copyright scofflaws are less likely to go undiscovered.
And as for content liability which a lot of parents and educators worry about throughout the global telecommunity, countries have attempted to deal with the issue of pornographic or abhorrent content in various manners.
We know that Singapore joined Asean member countries – the Philippines, Indonesia, Malaysia, Brunei, Thailand and Vietnam – in the effort to police sites that run counter to Asian values.
Since 1996, China has been enacting laws that directly extend the liability of ISPs (Internet Service Providers) for content. It made it illegal to disseminate "detrimental information" – a phrase so general and generic, it is indeed devastatingly limiting. Among the Asean countries, liability to carry content that could undermine public morals, political stability and religious harmony has been specifically stressed.
US law does not limit Internet speech to the same extent as other countries. Laws similar to the First Amendment of the US Constitution do not restrict the regulatory and punitive activities of most European and Asian governments. Thus, they can enact laws that expose an ISP to liability that would be found unconstitutional in the US.
Certain world-renowned ISPs like Compuserve and America Online were considered liable in Germany because they carried content that included child pornography and neo-Nazi materials on their sites. This was a well-publicized case all over the world.
In 1996, in a less publicized incident, British police exerted heavy pressure on a number of major ISPs to eliminate content that was considered pornographic. Another German court that same year ordered German ISPs to block access to a Dutch provider because it hosted a home page that contained neo-Nazi propaganda which is unlawful in Germany.
Sweden is one European nation that has enacted group libel laws prohibiting the use of threatening words or expressions of contempt toward members of any group based on race, creed, skin color, and religious dogma, although the law remains untested as far as I know. France, Denmark, the UK, Italy and Canada have also enacted strict libel laws that exceed any possible liability in the US, and said laws apply to both Internet and non-Internet activities.
Middle Eastern countries have likewise passed laws that limit access to Internet sites with offensive content, and most often, such laws directly extend the liability of ISPs for content that is not adherent to strict Islamic law.
Since ISPs have been placed under the global microscope subject to worldwide legal scrutiny, they are not able to insulate themselves from liability. The worldwide trend seems to be that merely providing access or connection to or from a facility, network or system that contains unlawful materials has the potential for resulting in liability. This was what Dr. Pekka Tarjane, the brilliant Finnish former two-termer secretary general of the International Telecommuni-cations Union, told his audience at the Intercon ballroom when he visited the Philippines in 1996.
Quoting from Jeffrey D. Sach’s paper, "Globalization and the Rule of Law," he said: "Since Vasco da Gama circled the Cape of Good Hope in 1497, the process of globalization has continued from one technical advance to the next: ocean-going sailing vessels, railroads, steamships, the telegraph, the Suez and Panama Canals, automobiles, airplanes, container ships, and recently the information technology revolution, so that now, a simple fiber optic cable can transmit volumes of text around the world in less than a second."
He said that the challenge we will have to face is creating a rule of law fit for a globalized world "which really does involve two levels of mystery: that of law at the level of the nation state, and that of international law fit for our global capitalist society."
Thanks for your e-mails sent to jtl@pldtdsl.net.
I received four e-mails that requested some writeup about Internet content liability. One of the senders, an engineering student, suggested a piece on what I call "scofflaws," or Internet violators, which have been growing by leaps and bounds.
Playboy Enterprises Inc., which publishes the magazine Playboy, has been one of the more active players in Internet law, filing quite a number of lawsuits in the global judicial arena, against people and companies that use the famous adult entertainment publisher’s intellectual property in cyberspace without securing permission.
Intellectual property, as we all know, includes copyrights such as photographs of nude models and trademarks such as the Playboy and Playmate names.
Though Playboy is among the more active players on the online adult world, it is considered a docile player. For one thing, it has to maintain a large library of high-quality content which is very important for the success of any publisher, particularly on the web. Popularity, however, has its downside for while imitation is considered as the greatest form of flattery, the entity being imitated is certainly not in business to give away its content ex gratia.
Hence, any individual or entity that copies any of Playboy’s photos for their own websites either through the method of scanning images from the printed Playboy magazine, or copying the images from its site, Playboy acquires a cause of action right then and there. And Playboy has never hesitated to enforce its rights. Why not, it’s considerably profitable.
One of Playboy’s celebrated copyright infringement cases was Playboy vs. Sanfilippo, the respondent owning a company called Five Senses. The complaint alleged that Francesco Sanfilippo operated a website through which he provided and sold access to thousands of copyrighted photographs owned by Playboy. Sanfilippo’s website, like many sites with pornographic content, was divided into the public and the private sections. The public or what is called the free section advertised images obtainable in the private area accessible to those who bought the password from Sanfilippo.
This happened in October 1996. Cease and desist letters were first sent by Playboy’s lawyers to Sanfilippo, but in spite of the fact that the latter acknowledged that some of the images on his website were scanned directly from Playboy magazine, and even answered the last "Cease and Desist Within 24 Hours" notice, the guy just brazenly did not do so.
Playboy sued for a staggering amount of $285,420,000 computing the amount on the basis of 1,699 images based on the maximum award that the California court gives for willful copyright infringement. What was awarded was nowhere close to the above figure, but the amount was still sizeable at $3,737,500.
One noteworthy aspect is this – in the past, quite a number of people might have been able to get away with copyright infringement because the copyright owner was oblivious to what was happening, for instance, if someone copied photographs and used them in a press advertisement in another country. But because of the great phenomenon that the world wide web is – meaning, available worldwide and accessible so easily – copyright scofflaws are less likely to go undiscovered.
And as for content liability which a lot of parents and educators worry about throughout the global telecommunity, countries have attempted to deal with the issue of pornographic or abhorrent content in various manners.
We know that Singapore joined Asean member countries – the Philippines, Indonesia, Malaysia, Brunei, Thailand and Vietnam – in the effort to police sites that run counter to Asian values.
Since 1996, China has been enacting laws that directly extend the liability of ISPs (Internet Service Providers) for content. It made it illegal to disseminate "detrimental information" – a phrase so general and generic, it is indeed devastatingly limiting. Among the Asean countries, liability to carry content that could undermine public morals, political stability and religious harmony has been specifically stressed.
US law does not limit Internet speech to the same extent as other countries. Laws similar to the First Amendment of the US Constitution do not restrict the regulatory and punitive activities of most European and Asian governments. Thus, they can enact laws that expose an ISP to liability that would be found unconstitutional in the US.
Certain world-renowned ISPs like Compuserve and America Online were considered liable in Germany because they carried content that included child pornography and neo-Nazi materials on their sites. This was a well-publicized case all over the world.
In 1996, in a less publicized incident, British police exerted heavy pressure on a number of major ISPs to eliminate content that was considered pornographic. Another German court that same year ordered German ISPs to block access to a Dutch provider because it hosted a home page that contained neo-Nazi propaganda which is unlawful in Germany.
Sweden is one European nation that has enacted group libel laws prohibiting the use of threatening words or expressions of contempt toward members of any group based on race, creed, skin color, and religious dogma, although the law remains untested as far as I know. France, Denmark, the UK, Italy and Canada have also enacted strict libel laws that exceed any possible liability in the US, and said laws apply to both Internet and non-Internet activities.
Middle Eastern countries have likewise passed laws that limit access to Internet sites with offensive content, and most often, such laws directly extend the liability of ISPs for content that is not adherent to strict Islamic law.
Since ISPs have been placed under the global microscope subject to worldwide legal scrutiny, they are not able to insulate themselves from liability. The worldwide trend seems to be that merely providing access or connection to or from a facility, network or system that contains unlawful materials has the potential for resulting in liability. This was what Dr. Pekka Tarjane, the brilliant Finnish former two-termer secretary general of the International Telecommuni-cations Union, told his audience at the Intercon ballroom when he visited the Philippines in 1996.
Quoting from Jeffrey D. Sach’s paper, "Globalization and the Rule of Law," he said: "Since Vasco da Gama circled the Cape of Good Hope in 1497, the process of globalization has continued from one technical advance to the next: ocean-going sailing vessels, railroads, steamships, the telegraph, the Suez and Panama Canals, automobiles, airplanes, container ships, and recently the information technology revolution, so that now, a simple fiber optic cable can transmit volumes of text around the world in less than a second."
He said that the challenge we will have to face is creating a rule of law fit for a globalized world "which really does involve two levels of mystery: that of law at the level of the nation state, and that of international law fit for our global capitalist society."
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