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Further legal problems for Phorm
RELEASE: 25 November 2008
The November 2008 issue of "Computers and Law", the highly respected publication of the Society for Computers and Law, carries an article by Nicholas Bohm, General Counsel for the Foundation for Information Policy Research (FIPR), and Joel Harrison, an associate at Milbank, Tweed, Hadley & McCloy LLP.
The article considers a new set of legal issues that arise from the deployment of "behavioural advertising" systems that provide targeted advertising by snooping on Internet users' web browsing. In particular, it considers whether the system from Phorm Inc that is currently being tested in the UK by BT under the "Webwise" brand name will infringe the legal rights of intellectual property holders.
Earlier legal analysis by Nicholas Bohm has shown that deployment of the Phorm system amounts to illegal interception of web traffic, contrary to s1 of the Regulation of Investigatory Powers Act 2000.
The new article explains how the Phorm system will also infringe the database right for some website owners. It further shows that the Phorm system will infringe almost all website owners' copyright. The way that the Phorm system works means that it will make an infringing copy of the website content; and none of the statutory exceptions in the Copyright Designs and Patents Act 1988 are applicable.
Website owners can take action through the courts to defend their rights. The article explains that this is not mere legal quibbling, since some website owners will suffer actual harm from the Phorm business model. The authors point out that although damages could be awarded for the infringements, an alternative remedy would be for the claimant to go after the profits made from the infringing acts, preventing the ISPs who deploy Phorm from making any money from their illegal systems.
"Profiling Web Users -- Some Intellectual Property Problems", Nicholas Bohm and Joel Harrison, Computers and Law 19(4), November 2008
Nicholas Bohm's earlier legal analysis, concentrating on criminal law infringements such as illegal interception:
Richard Clayton's technical analysis of the Phorm system:
Said Nicholas Bohm, General Counsel, FIPR:
"My earlier legal analysis shows that the operation of Phorm's system involves illegal interception, fraud and breach of the data protection principles. Now, with the help of my co-author Joel Harrison, I've explained how the system infringes the copyright and database rights of many Internet content providers. These companies have the option to take court action to ensure that Phorm, and the ISPs that use their system, are unable to profit from their illegal actions -- Phorm and the ISPs have only one sensible option: to abandon their plans altogether."
Nicholas Bohm General Counsel, FIPR 01279 870285 07715 419728 nbohm AT ernest.net
NOTES FOR EDITORS
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