13 August 2006

Legality of Trading in Certificates of Authenticity

Several of you have asked what has happened to this blog recently, particularly over the last few weeks when it has been silent. The answer is that I have been exceedingly busy. I am after all a barrister first and blogger second. Although I have had a lot of other work my biggest case was Microsoft Corporation v Ling and others [2006] EWHC 1619 (Ch) (3 July 2006)

In that case I faced on very meagre resources two very able counsel - one an acknowledged expert in civil fraud and the other an intellectual property specialist - instructed by a very large law firm. The issue was whether dealing in certificates of authenticity - stickers that are affixed to the casing of microcomputers upon which Windows or other software is installed - is always necessarily unlawful. That issue had already arisen in the USA, Israel and the Netherlands but this appears to be the first time that it has arisen in this country.

As I was counsel in the case it would not be right for me to say anything more about it other than that the judgment is in the public domain and that the litigation has now settled. In the USA the legality of such dealing has been outlawed by section 3 of the Anticounterfeiting Act of 2004. Coincidentally, the first prosecution under the Act was announced a week after the judgment in Microsoft v Ling (see "Man Indicted For Trafficking 'Certificates of Authenticity' " (LinuxElectrons 11 July 2006). The fact that this statute was required suggested that that trade was not unlawful before it was passed.

In Israel the Court of First Instance had held that dealing in certificates of authenticity was unlawful in Microsoft Corporation v NAD Electronics. An appeal was lodged against that decision and the very forceful skeleton argument of the appellant was before the court in my case. Sadly, that case has also been settled.

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