Two recent cases illustrate the limits of employee rights in connection with their use of technology related to the workplace. Although these are extreme examples, they reinforce some basic rules about employee “Acceptable Use” policies, and employee use of technology:

• Employee Blog: In the case of Alberta Union of Provincial Employees v. Alberta QB 2009 ABQB 208 (Nielsen, J.) the court dealt with a union employee who was dismissed on the basis of blog-postings which were critical and contemptous of fellow employees and management.  While the case was sent back to the labour arbitrator because of procedural irregularities (the employer failed to follow the collective agreement in the course of disciplining the employee), it is important to note that the decision to dismiss the employee was not overturned by the court. In short, there are circumstances where an employee can be dismissed for cause due to blog-postings that expose fellow workers to contempt and riducule.
• Reasonable Expectation of Privacy: In the case of R. v. Cole, 2009 CanLII 20699 (ON S.C.), an Ontario high-school teacher was charged with possession of child-pornography, on the basis of images found in a hidden file on a laptop assigned to him, but owned by his employer.  He complained that he had a right to privacy over the contents of the laptop, and therefore the search of his hard-drive was an unreasonable invasion of privacy. The court rejected this argument, saying that by agreeing to the School Board’s ”Acceptable Use Agreement“, the accused clearly knew that the data and information on the laptop were not private.  The terms of the Acceptable Use policy were important in establishing the limits of the employee’s right to privacy.

Lessons for business?

1. Employee privacy issues have to be handled carefully and with sound legal advice in accordance with workplace policies;
2. Dismissing an employee based on the contents of a public blog, Facebook page or other online posting is not a trivial matter and must be undertaken after careful consideration of the employer’s procedures and the nature of the online comments;
3. If you don’t have an acceptable use policy, then you should consider having one prepared for your employees. 

Related reading: Employer Access to Employee Gripe Site

Calgary 11:45 MST

Recent news articles have shown that Twitter Inc. has run into problems with its US trade-mark application for TWEET.  Others have beaten them to the trademarks office with applications for marks such as  TWEETMARKS,  COTWEET and TWEETPHOTO, which have been cited by the US trademarks office as being confusing with TWEET. In Canada, Twitter filed their application on June 10th, and it appears a potentially competing mark TWEETBUCKS was filed two days before on June 8th. (The registered mark HOME TWEET HOME for bird houses, owned by an Alberta entrepreneur, likely won’t be a problem for Twitter.) Curiously, Twitter’s application for TWEET is based on “proposed use in Canada”, though the service has been embraced by Canadians for several years.

Lessons for business?

• Don’t wait to protect strategic brands, in both your home jurisdiction and important foreign markets. This shows the risks of waiting too long.
• A successful core service such as Twitter will, in very short order, spawn innumerable spin-off products and services. While these spin-offs can benefit and drive traffic to the core service, they can also threaten the identity of the brand. So in time, Twitter and Tweet may suffer from “genericide” - the effect of such widespread penetration and use that the term morphs from a specific identifiable brand into a generic word.

Calgary - 10:00 MST

Recent news articles from Newsweek and cnet report that the US military has deployed the iPod Touch and iPhone in the battlefield, as a user-friendly, multifunction device to assist soldiers with communication, translation, intelligence-gathering, logistics and training. Sorry, guys, but you’ll have to read the fine-print. The iPod Touch software license clearly says:

“The iPod Touch Software and Services are not intended or suitable for use in situations or environments where the failure or time delays of, or errors or inaccuracies in, the content data or information provided by the iPod Touch Software or Services could lead to death, personal injury or severe physical or environmental damage, including without limitation the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support or weapons systems.”

And you thought the Apple lawyers were just being over-zealous when they drafted that clause.

Calgary - 09:45 MST

Online defamation has always been about two issues: there’s the legal question of whether the online comments are “defamatory” according to the standard legal tests, but before you get to that stage, you need to know who is writing the defamatory comments.

That’s often where the inquiry starts and stops. Since online anonymity is so hard to pierce, the identity of the poster of defamatory comments is never known, and the person who is defamed has no-one to sue for defamation.  A court order on Monday has shed some light on the process of getting over that anonymity hurdle.  In the case of Cohen v. Google Inc., Index No. 100012/09 (N.Y. Co. August 17, 2009) (Madden, J., J.S.C.) (related story), a Canadian model has obtained an order compelling Google to disclose the identity of the author of the alleged defamatory comments.  “Pre-complaint disclosure” is not new, but this case has attracted attention because of the elements: a New York model, Google, and blogging.

In Canada, similar orders have been made in online defamation cases. In a 2009 decision in the case of Warman v. Fournier, the Ontario Superior Court of Justice ordered the disclosure of all personal information, including name, email and IP address, of eight anonymous posters in a defamation case.

Calgary - 14:00 MST

IsoHunt, a British Columbia-based service that indexes BitTorrents for peer-to-peer file sharing, attempted a pre-emptive strike against the Canadian Recording Industry Association (see our previous post), by asking the Court to declare that its activities were legal under Canadian copyright law.  Isohunt lost that bid in March, when a BC Court decided that the issues were too complex to be dealt with summarily, and that a full trial would be required. 

IsoHunt appealed that decision, and in late July, the BC Court of Appeal dismissed isoHunt’s appeal.  This means that the matter is unresolved, and will go ahead to a full trial - something that favours the recording industry, since the issues will be more complex and legal costs will escalate.  The stakes are high for both sides, and the resulting decision (if it does go through to trial) could be a landmark case for Canadian copyright law.

Related reading: isoHunt’s original petition (PDF courtesy of Torrent Freak).

Calgary - 09:45 MST

A small Canadian company, Infrastructures for Information Inc. (i4i), won a significant damage award earlier this year in its patent infringement fight wth Microsoft.  The lawsuit claimed that MS Word 2003 and Word 2007 contained custom XML tagging features that infringed the Canadian company’s patent.  Although the jury found in favour of i4i in May to the tune of $200 million, the heat was turned up this week when a U.S. judge added $40 million to the damages for Microsoft’s “willful infringement”, along with pre-judgment interest of $37 million. To top it off, the Court also issued a permanent injunction prohibiting Microsoft from selling its flagship Word program in the US. Microsoft has 60 days to comply with the injunction.  Not surprisingly, Microsoft has announced plans to appeal the ruling.

Calgary - 09:45 MST

In what appears to be a case of first impression in Canada, a Federal Court has confirmed that the title of a literary work cannot function as a registered trade-mark in Canada. This is consistent with the law in the US, but the issue has apparently never come before a court in Canada until earlier this year in the obscure but fascinating decision in Drolet v. Stiftung Gralsbotschaft and Foundation of the Grail Movement, 2009 FC 17 (CanLII) .  In that case, the Court decided that several registered trade-marks should be expunged from the register because they were used merely as titles of published works and were “inherently descriptive”. 

Compare this to the registrations for CHICKEN SOUP FOR THE SOUL, Registered, TMA546104, or any one of the HARRY POTTER books. Whenever the title of a successful book series is the subject of a trade-mark registration, care must be taken to ensure the registration can stand on its own as a trade-mark, and is not vulnerable to challenge on the basis set out in the Drolet decision.

Calgary - 10:30 MST

Applications for mobile devices are in their infancy (think of Hollywood in the 1930s). Apple’s App Store is one year old, barely out of diapers, and in that time customers have downloaded more than 1.5 billion applications. More than 65,000 apps populate the store, and the number of developers is growing by the month.  Blackberry entered the game in April with its own App World, already featuring a few thousand apps.  And Android Market - designed for Google’s platform - provides another venue for mobile applications.  There are currently about 6,000 apps available for Android.

Many businesses have recognized that a well-designed app can have benefits on many levels including revenue generation, exposure, access to early-adopter customers, and viral-marketing.  If you are considering this, ensure you have a proper App Development Agreement in place when engaging a developer, and consider intellectual-property ownership, cross-platform concerns and potential trade-mark issues.

Related reading: Apple’s battle over apps

Calgary - 09:00 MST

Another day, another lawsuit against Google (Rosetta Stone Ltd. v. Google, Inc., 1:09-cv-00736-GBL-JFA (E.D. Va. complaint filed July 10, 2009)). This lawsuit comes in the wake of recent changes made by Google to its AdWords policy. These changes relaxed the rules relating to the use of trade-marks and permitted the use of trade-marks in ad text in the U.S. even without approval from the trade-mark owner.  Not surprisingly, a recent study shows that, after the recent changes, there was an increase in the number of advertisers who sponsored or used trade-marks in their ad copy text. In other words, the use of trade-marks as sponsored keywords appears to be increasing with the new AdWords policy.

Calgary - 09:30 MST

The Canadian government has launched another attempt at reforming the Canadian Copyright Act, to bring it in line with the digital age. The last major overhaul of the legislation occured more than 10 years ago, and since then several attempts to introduce revised legislation were stymied, either by public opposition, or more often, intervening elections (Canada has held federal elections in 2000, 2004, 2006 and 2008, and commentators are watching for another in the fall of 2009). The current public consultation process runs from July 20 to September 13, 2009.  It is hoped that this process will permit Canadians to weigh-in (again) on copyright issues such as user rights, ISP-liability, file-sharing, piracy and downloading. The process also serves a useful political function: it permits the government to neutralize the copyright issue in the event of a snap fall election.

Calgary - 13:30 MST