I'm a regular reader of many sites across the Internet and one of my many reads involves the cell-phone oriented site, Howardforums, run by Howard Chui. It seems that MobiTV, a mobile TV provider, is threatening to shut down the site due to a forum member posting instructions on how to use MobiTV services for free. You can read Howard's assessment of the situation on in this thread. Note that I do not condone the unauthorized use of copyrighted material and I am providing the link only for informational purposes.

Based on the location of his legal counsel, Mr. Jeffrey Shek, I would believe that Howard is probably located somewhere in Canada, mostly likely in the GTA area. I'm a little surprised that he hasn't brought it to counsel yet, but I'm not sure if his lawyer is familiar with telecommunication and copyright laws across the United States and Canada.

This post isn't meant to constitute legal advice or even a formal legal analysis. It's really just to illustrate what issues may be at play. Since I don't have all the information on the matter, I can't give a legal opinion, nor am I retained to do so. Intellectual Property law is not my main focus, but it is an interesting aside that I enjoy studying. There are some very interesting issues that arise in this conflict which are worth discussing.

First, MobiTV has asserted it's rights under the Digital Millennium Copyright Act. This statute is an American statue. If Howardforums is operated out of Canada, it may not be subject to the Act. Therefore, the rights that MobiTV is attempting to assert may not be applicable in Howardforums' jurisdiction.

Secondly, many common law countries require that the trial be heard and may be subject to the defendants' jurisdiction. Even if MobiTV's offices are right across the street from the courthouse, they may be forced to commence an action in the defendant's jurisdiction, which can sometimes be problematic.

Thirdly, even if the DMCA is applicable and the case is heard in an American court, the foreign jurisdiction may refuse to recognize or honour the judgment given, meaning that MobiTV cannot collect any money.

It's not to say that MobiTV has no case. The writer of a book is entitled to stop the unauthorized distribution of his work and it is not a defence to simply say "The writer should have used special ink or paper to prevent it from being photocopied". Simply because MobiTV did not put proper security in place to prevent unauthorized use does not constitute a waiver of their rights, just as leaving your car doors unlocked does not mean that people can take what they want from it. I think that there is some merit in copyright law to MobiTV's position.

Having said that, I don't think MobiTV is handling the situation properly. By commencing this action, they have drawn a very high number of users to Howardforums and other sites that have posted this "exploit". They are also angering many of their potential consumers since many members on Howardforums support Howard and spend large amounts on their cell phones, who may boycott MobiTV (however, based on their comments in the forum, it appears that few users care for the service anyway).

MobiTV is also attempting to shutdown Howardforums. Strategically, this may be risky since if MobiTV is ruled against, Howardforums could commence an action for damages in this situation against MobiTV for lost revenue.

MobiTV has bigger issues on its hands. First, it has a terrible security system that Howard analogizes to a movie theatre with clear walls and based on my experience with computer security, he is right. Second, it may be in violation of broadcasting laws in foreign jurisdictions. Some broadcasters in foreign jurisdictions may have exclusive rights to air certain programs in their country. With MobiTV streaming video across the Internet of those same programs, without a licence, it may be in violation of the terms of the agreement and the broadcasting laws.

This dispute seems to be based on principal. Howard does not want to give into a large company that does not implement proper security while trying to strong arm hard working guys like himself. On the other hand, MobiTV doesn't want people to use its service for free. Unless Howard is planning on spending money on legal fees, he may be best served by removing the post or just linking to another site with the instructions. He has little to gain from keeping the post and a lot to lose. MobiTV, on the other hand, should really hire someone competent to look after it's PR and computer security.

        

 

What did you think of this article?

Liked
Disliked
No Opinion