Unit 2.6 CR in the digital environment

Question 1

What was framing considered compared to linking before the recent decision of the European Court of Justice?

Answer 1

Framing was generally considered substantively different from linking.

Question 2

What is framing in web content?

Answer 2

Framing is displaying the content of a referenced web page within the web page that links to it, making it look like part of the linking website.

Question 3

How does linking differ from framing?

Answer 3

Linking replaces the web page of the linking site with the referenced site or launches a new web page, displaying the referenced site’s address.

Question 4

Why do website owners object to framing?

Answer 4

Framing can be financially harmful as it typically strips out any advertising that appears on the framed website.

Question 5

What is the legal concern with framing?

Answer 5

Framing may constitute unauthorized reproduction of content, leading to copyright infringement unless it falls under a fair-dealing exception.

Question 6

What are the potential legal consequences of framing?

Answer 6

Back: It may lead to claims of copyright infringement, passing off, or unlawful competition due to user confusion or misrepresentation.

Question 7

What is spidering?

Answer 7

A: Spidering involves using computer programs (spiders, bots, webcrawlers) to seek out specific information on the Internet, which may lead to potential copyright infringement.

Question 8

How does spidering relate to copyright infringement?

Answer 8

Spidering can result in copying a substantial part of a copyright work, which constitutes copyright infringement.

Question 9

What are the technical concerns for website owners regarding spidering?

Answer 9

Spidering can distort traffic figures and significantly affect website performance due to repeated targeting

Question 10

What was the outcome of early US cases on spidering like eBay v Bidder’s Edge

Answer 10

Spidering was considered unlawful on the basis of trespass, despite the websites being accessible to the general public.

Question 11

What was the ruling in the eBay v Bidder’s Edge case?

Answer 11

The court granted eBay an interim injunction, considering Bidder’s Edge’s conduct as trespass due to the substantial number of accesses per day.

Question 12

What was the outcome of the Ticketmaster case regarding spidering?

Answer 12

The court held that the gathering of factual data not protected by copyright was allowed, dismissing the claim for trespassing as there was no significant harm to Ticketmaster’s website.

Question 13

How did a French court rule on spidering in a competition context?

Answer 13

The court held that spidering for financial information led to both database right infringement and unlawful competition.

Question 14

What is the current US position on spidering and trespass?

Answer 14

An action for trespass will not succeed unless there is evidence of harm or likelihood of harm to the plaintiff’s service or network.

Question 15

When might spidering amount to unlawful competition?

Answer 15

When it interferes with the performance of the referenced website or if the linking site takes unfair advantage of the content, causing harm to the owner.

Question 16

What qualifies a website as a database?

Answer 16

A website may qualify as a database if it is an organized collection of information.

Question 17

What is the sui generis database right in Europe?

Answer 17

It protects the investment in obtaining, verifying, or presenting the contents of the database.

Question 18

How can a database be infringed through deep linking?

Answer 18

By constituting reutilization or extraction of the database or its systematic exploitation.

Question 19

Copyright Protection in South Africa Q: How does South Africa’s copyright protection differ from Europe’s?

Answer 19

South Africa has a lower threshold, requiring sufficient effort, skill, or judgment for protection, offering wider protection for compilations.

Question 20

What other legal protections may apply to website content besides copyright?

Answer 20

Other forms of legal protection may be available to the website operator to prevent the exploitation of its content.

Question 21

What other forms of legal protection might apply to website content besides copyright?

Answer 21

There may be other forms of possible legal protection to prevent the exploitation of a website’s content.

Question 22

What is passing off or unlawful competition in the context of websites?

Answer 22

Conduct that unlawfully interferes with a website’s intended purpose or takes unfair advantage of its content, causing or threatening harm, can be actionable as passing off or unlawful competition.

Question 23

How can hyperlinks or framing create confusion leading to a claim of passing off?

Answer 23

If they suggest a commercial connection between the two websites, they may create confusion and lead to a claim for passing off.

Question 24

What was the issue in the Shetland Times case related to passing off?

Answer 24

The defendant’s conduct allowed users to bypass the plaintiff’s homepage, avoiding exposure to advertisements, potentially causing financial harm to the plaintiff.

Question 25

How do website owners establish control over linking, framing, or spidering

Answer 25

Website owners incorporate contractual provisions (terms and conditions) on their websites to prohibit or set conditions for these practices.

Question 26

When can an action for breach of contract arise in the context of linking or framing?

Answer 26

If another website performs such acts without necessary authorization or contrary to the stipulated conditions.

Question 27

How can the enforceability of provisions against linking, framing, or spidering be increased?

Answer 27

By ensuring the provisions are brought to the notice of third parties, are readily accessible, and ideally require acceptance via a clickwrap agreement.

Question 28

What was the ruling in the Ticketmaster v Tickets.com case regarding website terms?

Answer 28

The court held that the website terms were not enforceable since they could be bypassed by Internet users

Question 29

What is the most basic exclusive right of a copyright owner?

Answer 29

The right to reproduce or copy the work in any manner or form.

Question 30

Does making a temporary copy of a copyright work constitute copyright infringement?

Answer 30

Yes, it does.

Question 31

What is caching in the context of web browsing?

Answer 31

It is a technical measure ensuring faster and cheaper delivery of web pages by making temporary copies on the server of the Internet service provider and the end user’s computer.

Question 32

Can reproduction of a copyright work take place in digital format?

Answer 32

Yes, reproduction can take place in any form, including digital format.

Question 33

What constitutes copyright infringement in terms of reproduction?

Answer 33

Copying a protected work or any substantial part thereof without a fair-dealing defense.

Question 34

What is a potential problem with caching?

Answer 34

End users may not access the most recent version of the web page.

Question 35

What happens each time an Internet user browses a website or listens to a song online?

Answer 35

A temporary copy of that content is made on the user’s computer.

Question 36

Are intermediaries involved in the transmission of data infringing copyright?

Answer 36

Intermediaries may infringe copyright or be liable on a contributory basis if their services are used in copyright infringement.

Question 37

What is an implied license in the context of copyrighted work on the Internet?

Answer 37

If a copyrighted work is made available on the Internet without restricted access, it is assumed that the copyright owner has granted others an implied license to access and enjoy the content.

Question 38

What does article 5 of the EU Copyright Directive state regarding temporary copying?

Answer 38

Temporary copying necessary for technological processes and transmission by an intermediary or lawful use is not copyright infringement.

Question 39

How does South African law protect intermediaries against copyright infringement claims?

Answer 39

ECTA provides various forms of exemption from liability, especially for service providers who facilitate transmission, distribute information, or control its publication.

Question 40

What protection does section 74 of ECTA provide to intermediaries regarding caching?

Answer 40

Intermediaries are not liable for automatic, intermediate, and temporary storage of data to facilitate transmission if they comply with industry norms and remove data upon receiving a take-down notice.

Question 41

What is the key difference between the EU E-Commerce Directive and ECTA regarding caching?

Answer 41

ECTA requires removal of data upon receipt of a take-down notice, while the E-Commerce Directive requires removal of defamatory material once intermediaries have actual knowledge thereof

Question 42

What was the Napster case about?

Answer 42

The Napster case involved legal issues related to peer-to-peer (P2P) file-sharing technology that allowed users to swap MP3 files, leading to copyright infringement claims.

Question 43

How did the Napster software work?

Answer 43

Napster enabled users to create shared folders with content they were willing to share. Users’ IP addresses and shared folder contents were logged on a central indexing server, allowing direct file transfers between users.

Question 44

What did the plaintiffs allege in the Napster case?

Answer 44

The plaintiffs alleged that Napster was a contributory and vicarious copyright infringer by facilitating the transmission and retention of sound recordings.

Question 45

How did Napster harm the plaintiffs’ market?

Answer 45

Napster reduced audio CD sales and raised barriers to the plaintiffs’ entry into the digital music download market, as free downloads on Napster harmed their attempts to charge for the same downloads.

Question 46

What fair use defenses did Napster claim?

Answer 46

Napster claimed its service allowed for fair uses of sampling and space-shifting, but the court rejected these claims.

Question 47

When is a person liable for contributory infringement?

Answer 47

A person is liable for contributory infringement if they have knowledge of the infringing activity and encourage or assist in such infringement.

Question 48

When is a person vicariously liable for copyright infringement?

Answer 48

A person is vicariously liable if they fail to use their ability to patrol the system and preclude access to infringing files, and if they benefit financially from the infringing files.

Question 49

What did the court order Napster to do?

Answer 49

The court ordered Napster to block access to infringing content if notified by the plaintiffs and to police its system, leading to a preliminary injunction against Napster’s participation in copyright infringement.

Question 50

Why did Napster close down?

Answer 50

Napster closed down due to the administrative burden and costs of complying with the court order.