E-data is shaping to be a major means by which intellectual property rights (IPR) disputes in the digitized age are settled or resolved. In the United States, cases abound that show e-data to be the lynchpin in deciding multimillion IPR controversies.
At this stage, the relevance of e-data in the Philippine IPR situation is not apparently known or even understood by the relevant government officials and private stakeholders. The Philippine Intellectual Property Office released an Intellectual Property Strategic Plan for 2007-2009. The Plan did not note in any of its internal and external challenges, or in any of its goals, the importance of educating its officials, employees and its clients of the legal and technological consequences of e-data in the whole IPR system, in general, and in securing and defending or proving IPR claims in particular.
Since 1999, I have been studying and writing about e-data and its IPR implications. I took the IPR course stream offered by the University of Queensland for my Master of Laws degree, where I encountered e-data in various IPR contexts. For my PhD studies, I explored the multidisciplinary connections between e-data, IPR, human rights and higher online learning. It was a challenging task that has brought so many rewards in terms of insights that I would never have appreciated or unearthed had I chosen to do a straightforward and simple PhD thesis. I am a product of government scholarships that have encouraged its recipients to give something back to the public. As part of my public service, I will endeavor to present the nexus between e-data and IPR in this, and other issues of “TheCyberLawyer” series.
In this issue, I chose to highlight the IPR dispute between several recording companies (represented by Arista), and a Spanish company, Sakfield Holding Co., Inc., (Sakfield) that ran a website (www.puretunes.com) which allegedly allows internet users to download copyrighted music without any requisite authority. (Arista et al v Sakfield et al, 314 F. Supp. 2d 27).
To overcome the issue of jurisdiction, Arista alleged and sought to prove that Sakfield has derived profits from the illegal music downloading of residents who live in the District of Columbia, Washington who used the puretunes site and software. Sakfield in turn denied this, claiming that it has no record or information of profits derived from residents in this area and moved to dismiss the infringement suit for lack of jurisdiction.
The court ordered a jurisdictional discovery to find out if Sakfield is actually doing business in the District of Columbia.
Even if Sakfield operates in Madrid, Spain, it has a reasonable expectation of being haled into court in the District of Columbia because of the nature of its business. To download a music file, a potential puretunes client had to subscribe to Sakfield’s service, give personal information, agree to a license agreement, download and install the proprietary puretunes software, which can then be used to download infringing music files from the website. Credit cards are used by puretunes customers if they desire to download music beyond the free first 25 songs. But these were not sufficient to establish Sakfield’s actual business in the District of Columbia.
What proved to be the crucial factor in making the court decide that Sakfield is under its jurisdiction is e-data or the substantial lack of it. Under the jurisdictional discovery order, Sakfield was compelled to produce the computer servers, which hosted the puretunes website together with the music database and users’ records, to enable the plaintiffs to discover evidence that are relevant to the case. These were held by a third party service provider. However, when the plaintiffs' cyberforensic expert examined the servers, he found that a program designed to erase electronically stored information had been run more than 50 times from a remote location in an effort to erase all electronic information on the servers. This caused the destruction of more than a majority of the e-data contained in the servers. The wiping of the e-data happened after Sakfield was informed by its Internet Service Provider that Arista et al, complained about music copyright infringement. The defense of Sakfield that it destroyed most of the e-data on the servers to prevent further infringement was according to the court, “one of the most ludicrous arguments ever visited upon this Court in written form” (p 33).
Despite the attempted total destruction of e-data, the plaintiffs' cyberforensic expert recovered a small amount of information from the computer servers which showed partial lists of Puretunes users and a partial record of music file downloads. The cyberforensic expert was able to extrapolate data which showed that 241 puretunes users were located in the District of Columbia, and these users downloaded 20,000 music files from puretunes. The extrapolation process made by the cyberforensic expert cannot be seriously discredited by Sakfield. Were it not for the wiping program utilized by Sakfield, the cyberforensic expert would not have had to resort to such method. Further, the destruction of evidence raises the presumption that disclosure of the spoliated e-data would be incriminating.
Entities who use the web to transact their business should take into account the court’s admonition that the words “internet transaction” is not some mantra nor “some mystical incantation capable of warding off the jurisdiction of courts built from bricks and mortar". [citing Gorman v Ameritrade Holding Corp. 293 F.3d at 510].
Copyright by Atty. Noel Guivani Ramiscal. The views expressed are my own and do not constitute legal advice. All Rights Reserved. Preferred citation for this issue:
Ramiscal, Noel Guivani, TheCyberLawyer Issue 6: Purging of “(Im)pureTunes”: E-Data and Jurisdiction in Intellectual Property Rights Dispute (July 20, 2007) http://noelgramiscal.blogspot.com/2007/07/thecyberlawyer-issue-6-purging-of.html, Date of Access
For comments, write: thecyberlawyer@gmail.com
At this stage, the relevance of e-data in the Philippine IPR situation is not apparently known or even understood by the relevant government officials and private stakeholders. The Philippine Intellectual Property Office released an Intellectual Property Strategic Plan for 2007-2009. The Plan did not note in any of its internal and external challenges, or in any of its goals, the importance of educating its officials, employees and its clients of the legal and technological consequences of e-data in the whole IPR system, in general, and in securing and defending or proving IPR claims in particular.
Since 1999, I have been studying and writing about e-data and its IPR implications. I took the IPR course stream offered by the University of Queensland for my Master of Laws degree, where I encountered e-data in various IPR contexts. For my PhD studies, I explored the multidisciplinary connections between e-data, IPR, human rights and higher online learning. It was a challenging task that has brought so many rewards in terms of insights that I would never have appreciated or unearthed had I chosen to do a straightforward and simple PhD thesis. I am a product of government scholarships that have encouraged its recipients to give something back to the public. As part of my public service, I will endeavor to present the nexus between e-data and IPR in this, and other issues of “TheCyberLawyer” series.
In this issue, I chose to highlight the IPR dispute between several recording companies (represented by Arista), and a Spanish company, Sakfield Holding Co., Inc., (Sakfield) that ran a website (www.puretunes.com) which allegedly allows internet users to download copyrighted music without any requisite authority. (Arista et al v Sakfield et al, 314 F. Supp. 2d 27).
To overcome the issue of jurisdiction, Arista alleged and sought to prove that Sakfield has derived profits from the illegal music downloading of residents who live in the District of Columbia, Washington who used the puretunes site and software. Sakfield in turn denied this, claiming that it has no record or information of profits derived from residents in this area and moved to dismiss the infringement suit for lack of jurisdiction.
The court ordered a jurisdictional discovery to find out if Sakfield is actually doing business in the District of Columbia.
Even if Sakfield operates in Madrid, Spain, it has a reasonable expectation of being haled into court in the District of Columbia because of the nature of its business. To download a music file, a potential puretunes client had to subscribe to Sakfield’s service, give personal information, agree to a license agreement, download and install the proprietary puretunes software, which can then be used to download infringing music files from the website. Credit cards are used by puretunes customers if they desire to download music beyond the free first 25 songs. But these were not sufficient to establish Sakfield’s actual business in the District of Columbia.
What proved to be the crucial factor in making the court decide that Sakfield is under its jurisdiction is e-data or the substantial lack of it. Under the jurisdictional discovery order, Sakfield was compelled to produce the computer servers, which hosted the puretunes website together with the music database and users’ records, to enable the plaintiffs to discover evidence that are relevant to the case. These were held by a third party service provider. However, when the plaintiffs' cyberforensic expert examined the servers, he found that a program designed to erase electronically stored information had been run more than 50 times from a remote location in an effort to erase all electronic information on the servers. This caused the destruction of more than a majority of the e-data contained in the servers. The wiping of the e-data happened after Sakfield was informed by its Internet Service Provider that Arista et al, complained about music copyright infringement. The defense of Sakfield that it destroyed most of the e-data on the servers to prevent further infringement was according to the court, “one of the most ludicrous arguments ever visited upon this Court in written form” (p 33).
Despite the attempted total destruction of e-data, the plaintiffs' cyberforensic expert recovered a small amount of information from the computer servers which showed partial lists of Puretunes users and a partial record of music file downloads. The cyberforensic expert was able to extrapolate data which showed that 241 puretunes users were located in the District of Columbia, and these users downloaded 20,000 music files from puretunes. The extrapolation process made by the cyberforensic expert cannot be seriously discredited by Sakfield. Were it not for the wiping program utilized by Sakfield, the cyberforensic expert would not have had to resort to such method. Further, the destruction of evidence raises the presumption that disclosure of the spoliated e-data would be incriminating.
Entities who use the web to transact their business should take into account the court’s admonition that the words “internet transaction” is not some mantra nor “some mystical incantation capable of warding off the jurisdiction of courts built from bricks and mortar". [citing Gorman v Ameritrade Holding Corp. 293 F.3d at 510].
Copyright by Atty. Noel Guivani Ramiscal. The views expressed are my own and do not constitute legal advice. All Rights Reserved. Preferred citation for this issue:
Ramiscal, Noel Guivani, TheCyberLawyer Issue 6: Purging of “(Im)pureTunes”: E-Data and Jurisdiction in Intellectual Property Rights Dispute (July 20, 2007) http://noelgramiscal.blogspot.com/2007/07/thecyberlawyer-issue-6-purging-of.html, Date of Access
For comments, write: thecyberlawyer@gmail.com
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