RE: UKNM: website hijacking

[Ben Metcalfe]

Interesting email, Alex.


When I get time, there are a few points I would like to discuss. But in the

meantime...


"As a lawyer I look at it and see pound signs": You assume that the copycat

is a business with assets.  Quite often these rip-off sites are done by

individuals (sometimes even teens/students).  But hey, that's the beauty of

the web: everyone has the tools to make a professional looking site (even if

it is a rip-off!)



Cheers


Ben Metcalfe{ Web Producer ~ BBC News New Media }


Phone{ 020 8225 8192 }

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-----Original Message-----

From: Alex Chapman [

alexbriffa [dot] com (mailto:alexbriffa [dot] com)

]

Sent: 19 December 2000 20:16

To:

uknmchinwag [dot] com

Subject: RE: UKNM: website hijacking



Rick


It seems crazy that anyone would even think of such a thing in the present

day and age and as a list member I just wonder what the motivation for

doing so is.


As a lawyer I look at it and see pound signs (I know I am supposed to - its

a lottery) and think that there is some firm out there with a very

interesting case on their hands.


Professionally I can't say for certain that this is a case of copyright

infringement (which if done knowingly and on a commercial scale may be a

criminal offence) and, as you say, passing off, without knowing more about

the facts. However in a hypothetical case where X has a site and Y copies

it substantially then it would be.


The reasons:


In the tort of passing off in that:

the use of a site that is an imitation of x's without x's consent, may be

calculated to cause confusion and has / may cause confusion and damage;

members of the public may be led to believe that the y's goods and services

are those of x or x's business and/or are in some connected or associated

with x;

y may have acted with the intention of taking advantage of x's reputation

and goodwill or alternatively knowing of the risk of confusion and decided

to take that risk.

it is or can be inferred that it is their intention to appropriate x's

goodwill.


Further or in the alternative under the Copyright Designs and Patents Act

1988 in that:


x's site constitutes an artistic and literary work (software code etc) in

which artistic and literary copyright subsists;

x is the author and first owner of copyright subsisting therein (if it is);

and

the creation for and use by y of a site that is an imitation of x's without

x's consent may amount to copying and issuing of copies to the public.


Further x may be entitled to additional damages pursuant to section 97(2)

of the Copyright Designs and Patents Act 1988 by reason of flagrancy of the

infringement.


x may be entitled to commence proceedings against ijacko and a Court may

make an order against it. The remedies available to you at the Court's

discretion are:


(1)	An emergency injunction restraining y from infringing x's rights

until

trial or further order;

(2)	A final injunction following trial;

(3)	Delivery up or destruction on oath of any material offending against

the aforementioned injunction;

(4)	Damages or an account of profits; and

(5)	Legal costs.


Its hard to be more specific here as far as advice is concerned - there are

a number of free articles and briefing notes at our sites www.briffa.com,

www.gameslaw.com and www.justadlaw.com for general advice though.


Do give me a mail off list if you want to talk the matter over (free of

course)


All the best


Alex


Alex Chapman

BRIFFA

Business Design Centre

Islington

London

N1 0QH


t: 020 7288 6003

f: 020 7288 6004

d: 020 7288 6076


e:

alexbriffa [dot] com

[Sam says: msg chopped]



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