IBLS Speaker's Corner

French Copyrights for Internet

2009-11-19T19:47:00Z

To whom it may concern,

We are a multimedia events company in Montreal, Canada and are looking for information concerning a public event we are organizing in Lyon, France. I'm not sure, exactly who we should be contacting for this but we have a hard time figuring out the procedures to clear music and video rights for our event. We communicated with the SACEM in France to clear the rights for public divulgation of music during the event but we need to know what to do in order to put the video of the live event on the Internet without breaking any laws on copyrights. During the event we would be using the songs listed bellow as well as some clips from very old black and white videos (at least 50 years old) that haven't been confirmed yet. Therefore, all thoses pieces would be accessible worldwide on the Internet after we film the event and put it online.

We would be using these very specific songs:

1. "Pagodes", by Claude Debussy, 4:30 mins. From the album "Debussy: Clair De Lune & Other Piano Works", performed by Alexis Weissenberg, ℗ 1986 Deutsche Grammophon GmbH, Hamburg.

2. "Il Pleure", by Claude Debussy, 3 mins, performed by Parker Shper.

3. "Fêtes", Claude Debussy, 5:55 mins. From the album "Debussy Greatest Hits", conducted by "Michael Tilson Thomas".

4. "Feu d'artifice", by Igor Stravinsky, 1:25 mins. Unfortunately I have no other information on this piece (conductor, album, etc)

Since it's the first time we're not working with a lawyer on a public event, we are having trouble finding the right people to ask. I figured you could maybe help us in our research to find the rights we are looking for.

Thank you for your time and help!

Best regards,

Julie Bazoge

Studio coordinator

MOMENT FACTORY

T 514 843 8433 C 514 967 7666

julieb@momentfactory.com

www.momentfactory.com

Online Privacy Guide for Internet Users, Practical Suggestions and Recommendations

2009-11-11T02:45:00Z

INTRODUCTION

The purpose of this guide is to help users understand their online privacy rights and remedies, and to know how and where to obtain relevant information about protection of their privacy rights. Privacy over the Internet is an evolving issue. This guide provides links to available resources users can resort to learn about legislative updates regarding online privacy. This guide will provide information on both existing and pending legislatures. For instance, it provides information on how the European member states are updating their domestic criminal laws to be able to prosecute online criminal activities pertaining the use and misuse of consumer personal data or misappropriation of consumer private information.

Protection of Privacy

People have a right to privacy under international laws and most countries'' domestic legislation. Privacy, therefore, became the main concern for legislators, consumers, and businesses. Your personal information is circulating on the Internet, are you aware of this as a consumer? Maybe you are not, but cybercriminals are. The availability of important and confidential information on the Internet has led to an increase in cybercrimes, including identity theft. Before you put your information out there, check the privacy disclosure on the website you are visiting or visit the following Web pages to obtain more information about protection of privacy.

Links: Laws http://www.techlawjournal.com/cong107/privacy/hollings/20020418summary.asp

Text of the legislation: http://www.cdt.org/legislation/107th/privacy/hollings.shtml

Legislation and other links: http://www.cdt.org/legislation/107th/privacy/hollings.shtml

Center for Democracy and Technology: http://www.ftc.gov/os/2002/04/index.htm

FTC"s response to this legislation: http://www.publishers.org/congrpt/onlineprivacy.htm

Comparison of the legislation: http://www.virsci.com/pharmaNetTRUST/fpw1_1.html#1

Comparison of the Consumer Privacy Protection Act of 2002 and the Online Personal Privacy Act

http://www.epic.org/privacy/cable_tv/ctpa.htmlhttp://www.epic.org/privacy/cable_tv/ctpa.html

U.S. Family Privacy and Security Act of 2002 or S.2137

This United States legislation was passed to protect minors using the Internet from harmful material. This bill is still pending approval. It is necessary legislation that helps prevent images created by video voyeurism and posted on the Internet. Do you know what your children are doing on the internet? Have you installed parental control on your children''s computers to protect them from predators and from pornography that is advertently spam to users'' computer while surfing the Internet?

Links: http://thomas.loc.gov/cgi-bin/bdquery/z? d107: s.02729, Bill Summary and Status: http://www.netcoalition.com/bills/index.phtml? rindex=69&issue=privacy&issueTitle=Privacy: Summary of the Legislation and text: http://www.cdt.org/legislation/107th/wiretaps/

Wiretap legislation: http://www.netcoalition.com/bills/billresources//2002-04-16.256.htm

Introductory remarks to the legislation: http://www.senate.gov/~landrieu/releases/02/2002417521.html

Landrieu Press Release: http://www.techtv.com/cybercrime/features/story/0,23008,3380883,00.html

Videotape voyeurism and state legislation: http://www.techtv.com/print/story/0,23102,3013505,00.html

Online Personal Privacy Act

This United States bill is directed to online businesses and a step ahead to protect and enhance consumer privacy. This legislation is similar to the Consumer Privacy Protection Act of 2002. Yet, one bill addresses business concerns regarding privacy issues, while the other closely addresses individuals'' privacy. Ultimately, whichever bill is passed, it will have an effect on electronic commerce and the Internet. The objective of this bill is to tighten existing loopholes and non-compliance issues that have infested the Internet and affected consumers'' privacy rights. Consumers must give permission before a business may collect any "sensitive personally identifiable information," such as race, financial information, medical data, and religious and political affiliations; if the information is "no sensitive personally identifiable information," you as the consumer may choose to "opt out." Under this bill, you have the right to bring a lawsuit against any commercial Web site operator who collects, discloses, or uses a customer''s "sensitive personally identifiable information." The legislation preempts state laws that regulate Internet privacy. This legislation also supersedes the privacy sections of Gramm-Bliley-Leach Act and other federal privacy laws creating a patchwork of privacy laws regarding online transactions. The legislation identifies "Internet companies as an Internet service provider, online service provider or commercial Web site operator and states that they may not collect, use, or disclose personally identifiable information without complying with this legislation." This requirement also applies to any third party, including advertising networks that use an Internet service provider, online service provider, or commercial Web site operator to collect information about users of that service or website.

Links: Laws: http://www.techlawjournal.com/cong107/privacy/hollings/20020418summary.asp

Text of the legislation: http://www.cdt.org/legislation/107th/privacy/hollings.shtml

Legislation and other Links: http://www.cdt.org/legislation/107th/privacy/hollings.shtml

Center for Democracy and Technology: http://www.ftc.gov/os/2002/04/index.htm

FTC''s response to this legislation: http://www.publishers.org/congrpt/onlineprivacy.htm

Comparison of the legislation: http://www.virsci.com/pharmaNetTRUST/fpw1_1.html#1

Federal Trade Commission and Privacy

Computer technology makes it easier to collect detailed information about people and easily share it. Today, law enforcement can easily track down criminals, and consumers can easily learn about new products and services, which allow better-informed purchasing decisions. The adverse effect of these is that personal information becomes more accessible. Thus, each of us - companies, associations, government agencies, and consumers - must take precautions to protect against the misuse of that information. The Federal Trade Commission is enlightening consumers and businesses about the significance of privacy regarding personal information. The Federal Trade Commission investigates violations of privacy; especially those dealing with fraud, identity theft and personal information being illegally shared among business entities and others.

Links: Laws

http://www.netcoalition.com/bills/index.phtml? rindex=71&issue=privacy&issueTitle=Privacy

Link to the legislation: http://www.techlawjournal.com/cong107/privacy/stearns/hr4678ih.asp

Text of the legislation; http://www.wow-com.com/pdf/hr4678_intro_stearns.pdf

EPIC''s response to privacy concerns http://www.epic.org/privacy/fipsltr5.8.02.html

Boucher introduces Consumer Privacy Protection Act of 2002 http://www.house.gov/boucher/docs/privacybill-pr.htm http://www.publishers.org/congrpt/onlineprivacy.htm

Comparison of privacy legislation, http://www.virsci.com/pharmaNetTRUST/fpw1_1.html#1

The Federal Agency Protection of Privacy Act

Another privacy bill pending on the United States Congress is the Federal Agency Protection of Privacy Act. This legislation orders federal agencies to consider the potential impact on citizens'' privacy, and requires a privacy impact analysis be included when agencies circulate rules or regulations for public comment. This legislation seeks to promote the privacy of individuals and prevents governmental encroachment. The legislation is a method to advance the privacy protection for American citizens. This legislation also requires each agency to "(1) carry out a periodic review of promulgated rules that have such impact to determine whether each such rule can be amended or rescinded in a manner that minimizes such impact while remaining in accordance with applicable statutes; (2) carry out such review in accordance with a plan that provides for the review of each rule every ten years after the rule was published as a final rule; and (3) publish annually a list of the rules to be reviewed. H.R.4561"

The legality of the encryption Products Export regulation

Cryptographic technologies have many applications that could aid privacy, but it is subject to export controls due to the fact that it can be used for criminal purposes or even as a weapon of war. Three cases have challenged the legality of the encryption export regulations. The following are the arguments made in these cases,

Ø Are unconstitutional prior restraints on speech under the First Amendment

Ø Violate the plaintiffs'' rights to due process under the Fifth Amendment

Ø Are not authorized by the International Emergency Economic Powers Act (IEEPA),

Links: Sample court documents: http://people.qualcomm.com/karn/export/amended_complaint.html

Karn amended complaint: http://samsara.law.cwru.edu/comp_law/jvd/pdj3.html

Amended complaint for Junger: http://www.epic.org/crypto/export_controls/bernstein_brief.html

Epic Amicus Brief filed for Bernstein: http://people.qualcomm.com/karn/export/index.html

Karn''s homepage of litigation case: http://samsara.law.cwru.edu/comp_law/jvd/

Junger''s Web site: Http://www.cdt.org/crypto/litigation/

Cryptography litigation: http://www.eff.org//Privacy/ITAR_export/Bernstein_case/Legal

Email Encryption Measures

As more people and business relies on the increasing use of electronic mail for personal and business use, its security has been the source of debate. This is due to the magnitude of confidential information and contractual matters being exchanged between parties on the Internet. Hence, this exchange may not be secure and the need for encryption measures must be considered. Encryption is "the transformation of data into a form that is as close to impossible as possible to read without the appropriate knowledge. The purpose of encryption is to ensure privacy by keeping information hidden from anyone for whom it is not intended including even individuals that have access to this encrypted data."

Links: http://ecommercetimes.com/perl/story/18860.html

Email encryption: http://gigalaw.com/articles/2000-all/halberstam-2000-03-all.html

Electronic mail disclaimers: http://www.wired.com/news/culture/0,1284,10555,00.html

Web-Based mail and anonymity: http://ecommercetimes.com/perl/story/18860.html

Email encryption: http://www.certifiedmail.com/

Certified mail: http://www.epic.org/

EPIC Web site: http://www.nai.com/

Network associates: http://www.pgpi.org/

PGP System: http://www.privacy.net/

Demonstration of the lack of the security of electronic mail

https://www.hushmail.com/?PHPSESSID=c8dbe21ffb87a3edb61fba90a8b5f286

Using the Internet brings with it a concern of who may be collecting your personal information. See Senator Ernest F. Hollings in response to this concern and on the Gramm-Leach-Bliley Financial Privacy Act on how businesses will treat financial data in any context. European Data Protection Directive strictly regulates personal data collection, processing and transfer. On this Directive, personal data can only be transferred to countries outside the E.U. that "guarantee an adequate level of protection." See also a detailed discussion on how the French government is trying to protect its citizen''s privacy by speeding up the development of online administrative services. For further information or assistance visit the following links.

http://www.e-recht24.de/artikel/datenschutz/16.html "Datenschutz im Internet" (in German)

http://www.ius-it.de/ Jens Engelhardt "Datenschutzrechtliche Anforderungen an Internetdienste- und Mediendiensteanbieter" (in German) http://www.legamedia.net/legapractice/gleiss/2000/00- 02/0002_hamann_christian_datenschutz.php, Christian Hamann "Datenschutz bei E-Commerc " (in German)

How to transfer Electronic Personal data from Europe to the United States

The European Data Protection Directive strictly controls personal data collection, processing and transfer. Pursuant to this Directive, personal data can only be transferred to countries outside the E.U. that guarantee an adequate level of protection. U.S. companies willing to transfer personal data from the E.U. to the U.S. must comply with either the "Safe Harbor" or the "Model Contract" alternative.

Information Sharing by Financial Services Provider

The Electronic Privacy Information Center (EPIC) has expressed concern about information sharing that occurs among financial services institutions. EPIC says that the Gramm-Leach-Bliley Act (GLBA) has failed to adequately protect consumer privacy in the financial services industry.

http://www.epic.org/news/ EPIC''S news page including links to its report about the GLBA Bill and links to attorney generals'' comments;

http://www.epic.org/privacy/financial/ag_glb_comments.html

Attorney Generals'' Comments about the GLBA; http://www.newsbytes.com/news/02/176335.h tml

Privacy Groups Criticize Information Sharing by Financial Institutions

http://www.epic.org/ Electronic Privacy Information Center''s Web site

Other Pending legislation in America: The Online Personal Privacy Act

Watch out for the following pending legislation: Collecting your personal information, Senator Ernest F. Hollings Online Personal Privacy Act.

Employer/Employee and privacy issues regarding Use of the Internet

Employers are using Internet filters to block users'' access to certain Web sites for security purposes.

The use of these filters has been challenged in the context of the workplace. While the Internet has been a forum of free expression and marketplace of ideas, the use of filters would prevent that potential. However, the workplace may hold a different context for determining the legality of these filters. Parents, employers, school districts, and other government entities are using privately manufactured Internet rating and filtering programs with increasing frequency.

Monitoring of Employees Electronic mails and Internet Usage

Employers are monitoring their employees'' e-mail usage and courts have been reluctant to get involved in the employer''s practices. Employers'' action will stand constitutional challenges since a governmental actor is not involved. The practices and policies of private employers will, therefore, have no probabilities of being successfully challenged. The usage of electronic mail and Internet access has proved to be a temptation for employees. These employees think that their e-mail should be private, even if it is sent over a company-owned system.

Employee misuse of these systems can lead to:

(1) "the disclosure of trade secrets;

(2) harassment and hostile environment claims;

(3) copyright penalties (up to $100,000 statutory damages);

(4) criminal penalties, including seizure of computers used in criminal activity; and

(5) potentially harming the company''s position in litigation."

The Failure of A Company to Remove a Former Employee''s name from its Web site is not unauthorized use

In Leary v. Punzi, the failure of a company to remove a former employee''s name from their Web site was not deemed an unauthorized use in terms of advertising. "The use of the individual''s name must be considered to determine the extent of the use and also to determine how much control has been exerted over the website and whether or not a commercial element is present."

Is reposting candid photos of women fair use? http://tushnet.blogspot.com/search/label/right%20of%20publicity

The Right of Publicity -- Names, Likeness, and Photos and beyond: http://www.iplegal.com/lib/rtpblct.html http://www.law.cornell.edu/wex/index.php/Publicity

The Right of Publicity: http://www.perkinscoie.com/resource/ecomm/netcase/Cases-22.htm

Right of Publicity Cases: http://www.mediainstitute.org/ONLINE/FAM2003/6-c.html

The Monitoring of Emails under French law

The Monitoring of email is legal, provided the employer respects certain conditions.

http://www.juriscom.net/pro/2/priv20020408.pdf

Martine Ricouart-Maillet and Caroline Requillard, "Le role de l''administrateur réseau dans la cyber surveillance" (in French); http://www.legalbiznext.com/cgi-bin/news/viewnews.cgi?category=8&id=1013771444

"Cybersurveillance des salariés: l''analyse" (in French); http://www.njuris.com/breves/brev_0102.htm

"Précisions jurisprudentielles sur la cybersurveillance des salaries" (in French)

Concerns Over A Company''s privacy Practices regarding Its Consumers

In FTC v. Eli Lilly and Company, the issue was the use of consumer''s personal information. A computer malfunction resulted in numerous customers'' information to be included in an email.

Links: http://www.ftc.gov/os/2002/01/lillyana.htm FTC''S Proposed Consent Order

http://www.ftc.gov/opa/2002/01/elililly.htm, FTC Settlement Commentary

http://www.ftc.gov/os/2002/01/lillyswindlestat.htm

U.S. Economic Espionage Act of 1996

Dissemination of trade secrets has become common with the use of the Internet because it allows for the quick dissemination of this information.

http://articles.corporate.findlaw.com/articles/file/firms/cg/cg000035/title/Subject/topic/Intellectual%20Property%20Law_Trade%20Secrets/filename/intellectualpropertylaw_1_238

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/59mcrm.htm

Economic Espionage: http://my.execpc.com/~mhallign/crime.html

http://www.tms.org/pubs/journals/JOM/matters/matters-9711.html Federal Liability for Theft of Trade Secrets:

Non-Competition Agreements

There is criminal liability for violation of non-competition agreements, because employers want to protect their intellectual property investments. Courts generally will enforce non-competition agreements that (1) are limited in terms of their prohibited activity, (2) contain a time limitation, and (3) include a reasonable geographic limitation.

Links: Non-Competition agreements: http://jobsearchtech.about.com/library/weekly/aa042202-2.htm

Is a Non-Compete agreement legal: http://jobsearchtech.about.com/library/weekly/aa042202-3.htm

Breaking a Non-Compete agreement: http://www.alllaw.com/forms/employment/employee_non-compete/

Another Example of a Non-Compete agreement: http://www.humanresourcesupply.com/emconandnonc.html

Employees Monitoring of Email can involve Invasion of Privacy Claims

There may be a state law action for violating privacy rights. Yet, U.S. states have taken different approaches to their interpretation and development of privacy violations. The right of employers to monitor their employees'' e-mail has constituted a claim arising under the privacy torts. However, even though many companies have electronically monitored their employees'' Internet and e-mail usage, they can potentially face lawsuits for invasion of privacy. State privacy laws include the torts of public disclosure of private facts, false light and false intrusion. Each state has taken a different approach to these torts and whether or not there is a right to sue for the various theories of action."

Links: Monitoring of e-mails: http://www.phillipsnizer.com/int-art168.htm

http://www.tomwbell.com/NetLaw/Ch05/Bourke.html

Bourke v. Nissan Motor Corp: http://courtstuff.com/cgi-bin/as_web.exe?c05_99.ask+D+10706510

McLaren v. Microsoft Corp.: http://www.marquette.edu/law/course/priv_98/kmart.htm

K-Mart Corp. State No. 7441 v. Trotti: http://www.tomwbell.com/NetLaw/Ch05/Bourke.html

Creation of the Website by an Employee under French law

When a company allocates the creation of its Web site to one of its employees, this company must assure that it is entitled to use this site. The employee might be the copyright holder of the Web site of the company, could sue this company for copyright infringement, and even restrain the company from using the Web site.

http://www.en-droit.com/intellex/ouvrages/creation_salariee_site_web.pdf

http://www.legalis.net/legalnet/judiciaire/tcomm_edirom_0198.htm

Edirom vs. Global Market Network, Commercial Court of Nanterre, January 27, 1998 (in French)

Australia''s New Private Sector Privacy laws

The discussion gives an overview and considers the implications of the touchstone of the new privacy laws, the "10 National Privacy Principles." http://www.privacy.gov.au/publications/IS12_02.PDF

http://www.privacy.gov.au/publications/IS1_01.pdf

Privacy Commissioner''s Information Sheet 1 - Overview of the Private Sector Provisions

Links: http://www.privacy.gov.au/ Australian Privacy Commissioner''s website

Company Internet and Email policies

Companies regulate the exchange of e-mail system, including incoming and outgoing messages. Companies'' directors want to know how their employees are using their system and what information is being exchanged. "The use of the electronic mail system may lead to the disclosure of trade secrets, harassment and hostile environment claims, copyright penalties of exchanging copyrighted information, criminal penalties and harm to the company''s reputation and position in litigation. These strong interests have led many employers to draft Internet and electronic mail policies. These policies will influence electronic commerce matters."

Sample Email Policy: http://www.phillipsnizer.com/int-art168.htm

http://eon.law.harvard.edu/privacy/McLaren_v_Microsoft.htm

Devising a Privacy Policy for Corporations

Privacy policies for online businesses are worrisome to all, especially when it involves sharing consumer information with third parties. Companies have attempted to combine consumers'' data, but efforts need to be made to protect shoppers'' privacy.

eBay Changes Policy: http://news.com.com/2100-1017-845911.html

Best Buy Changes Policy: Best Buy Changes Policy http://news.com.com/2100-1017-932157.html

Yahoo Changes Its Privacy Policy: http://news.com.com/2100-1023-870270.html

Legislation Aimed to Protect Online Privacy: http://news.com.com/2100-1023-916662.html

Epic''s Privacy Policy: http://www.epic.org/epic/privacy_policy.html

FTC Privacy Policy: http://www.ftc.gov/ftc/privacy.htm

Microsoft Privacy Policy: http://www.microsoft.com/info/privacy.htm

Drafting a Company internet policy Complaint with the Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act (CFAA) has an effect on electronic commerce. The legislation and its ensuing cases have shown that there must be a specific and detailed electronic mail and Internet usage policy in place to limit the usage of computers at the workplace. The Computer Fraud and Abuse Act (CFAA), 18 U.S.C. Sec. 1030, was passed in 1984 and has been amended on two different occasions. The CFAA has become of great importance with the increasing use of the Internet especially in the workplace. http://www.usdoj.gov/criminal/cybercrime/1030_new.html

Strategies for Internet policies: http://www.infoworld.com/articles/op/xml/00/11/20/001120opborck.xml

Secretary of State-Washington: http://www.secstate.wa.gov/archives/pdf/E-mail%20Guidelines.pdf

Fair Measures on Internet Usage Policies: http://www.fairmeasures.com/pcm_iepolicy.html

Online Advertising and Spamming

Spamming is an Internet advertising method. Spamming takes place when an Internet user indiscriminately distributes large amounts of unsolicited information, in the form of e-mail messages, to large numbers of other Internet users. Internet users and service providers consider spamming "wrongful" conduct because the excessive data that comprises the e-mail messages slows or disrupts the computer servers processing Internet data transfers, resulting in a possible loss of service to the user. The excessive quantities of e-mail generated by spammers causes both Internet users and service providers alike to incur unwanted expenses. The recipients of these unsolicited e-mail advertisements may incur additional expenses because they are to pay the service provider for any online time required to retrieve or delete these messages, while the service provider must expend valuable computer storage area by holding the recipients'' unretrieved messages.

See The FTC Act and advertising on the Internet: http://www.ftc.gov/bcp/conline/pubs/buspubs/dotcom/index.html

FTC''s Guidelines to Disclosures for Internet Sites: http://www.ftc.gov/bcp/conline/pubs/buspubs/ruleroad.shtm; Advertising and Marketing on the Internet: Rules of the Road: http://www.ftc.gov/bcp/icpw/comments/era.htm

Interpretation of Rules and Guides for Electronic Media:

http://www.ftc.gov/bcp/rulemaking/elecmedia/workshop/index.shtm

FTC v. Odysseus Marketing, Inc. http://www.ftc.gov/os/caselist/0423205/080131motion.pdf

The Use of SMS Messages and Political SPAM

Federal election regulators exempted text-based wireless advertisement (Ads) from campaign disclosure rules. Consumers could find their mobile phones subject to a flood of political spam. The Federal Election Commission (FEC) approved a New Jersey technology firm''s petition to waive disclosure rules for political Ads delivered via SMS -- or "short messaging service."

The First Amendment, Junk Faxes and Spam: http://www.washingtonpost.com/wp-dyn/articles/A49356-2002Aug22.html

SMS Political Ads Effects: http://www.zdnet.com/products/stories/reviews/0,4161,2795550,00.html

European Union Anti-Spam Directive

This European Union Directive allows an "opt-in" opportunity for consumers if they desire to have unsolicited email. "If there is no prior relationship with the company, they are not permitted to bother the consumer with the unsolicited email." http://www.euro.cauce.org/en/amendments.html#cult

http://www.cauce.org/pressreleases/20020531.shtml

Spyware / Cookies and Privacy Concerns

The use of cookies has raised privacy concerns. The use of cookies and its legal implications pertaining to privacy issues and whether or "not the cookies have lead viruses or other spyware to become present on one''s personal computer have become issues in the increasing use of computers for online shopping and electronic commerce." Privacy concerns will continue to exist on the Internet as long as monitoring and privacy standards are not implemented.

http://news.bbc.co.uk/1/hi/sci/tech/1868395.stm

Google Hit by Link Bombers: http://www.microcontentnews.com/articles/googleblogs.htm

Weblogs: http://www.microcontentnews.com/articles/googlebombs.htm

Google Bombings: http://www.wordspy.com/words/Googlebombing.asp

Google Bombing: http://www.google.com/technology/index.html Google Press Release:

http://www.cookiecentral.com/faq/#1.1 Cookies FAQ: http://www.epic.org/privacy/internet/cookies/

Electronic Privacy Information Center Primer on Cookies

http://www.epic.org/privacy/internet/ftc/DCLK_comp_pr.html EPIC''s Press Release about DoubleClick lawsuit

Privacy Standards Set For the Use of Cookies

Cookies and their use of tracking users'' Internet movement have raised privacy flags. Privacy standards, therefore, have been determined for the use of cookies. Privacy concerns will continue to exist on the Internet as long as monitoring and privacy standards are not implemented. This issue consistently has become an "opt-out" system instead of an "opt-in" system, which privacy advocates have found troubling. http://www.cookiecentral.com/faq/#1.1

Cookies FAQ: http://www.oag.state.ny.us/press/2002/aug/aug26a_02.html Press Release for Cookie Standards

http://www.washingtonpost.com/wp-dyn/articles/A64716-2002Aug26.html Settlement Agreement

Whether the Use of Cookies to Track Internet Usage can violate Anti-Stalking Laws

In Universal Image Inc. v. Yahoo!, Inc, the issue involved the use of cookies and the right to privacy. Yahoo''s privacy policy was examined. This case was revolutionary because it determined whether the use of cookies to track Internet usage can violate consumer privacy. Companies must fully disclose their privacy policies so that users can make informed decisions of whether they want their information stored on the advertisers'' systems. http://legal.web.aol.com/decisions/dlpriv/universal.html; Commentary and Resources

http://www.tomwbell.com/NetLaw/Ch09.html hacking resources

http://www.tomwbell.com/NetLaw/Ch09/UniversalvYahoo.html Complaint in the case

Cryptography Standards

Cryptography can provide the means for identifying the source, authenticating the contents, and providing privacy against eavesdroppers. Cryptography standards are needed to create interoperability in the information security world and are seen as conditions and protocols set forth to allow uniformity within communication, transactions and virtually all computer activity. The evolution of cryptography has caused other standards to become known and used on the Internet.

http://csrc.nist.gov/encryption/aes/rijndael/ NIST Website About New AES Standard http://www.esat.kuleuven.ac.be/cosic/press/pr_aes_english.html

http://www.rsasecurity.com/rsalabs/faq/3-3-1.html

Protection of Consumer Information from being Sold to the Third Parties

EPIC and Junkbusters filed objection to state Attorneys General urging them to protect records of book purchases collected by Amazon.com. Amazon.com changed its privacy policy in September 2000, and EPIC severed its relationship with the company and filed a complaint with the FTC.

Epic Filed For An Investigation of Amazon: http://epic.org/privacy/internet/amazon/ftcletterpr.html

Letter to the Attorney General: http://www.epic.org/privacy/amazon/amazonltr10.8.02.html

Epic Ends Relationship with Amazon: http://epic.org/privacy/internet/amazon/letter_pr.html

Response of the Massachusetts Attorney General: http://www.epic.org/privacy/amazon/agresponse10.8.02.pdf Junkbuster''s Archives of Amazon.com Issues: http://www.junkbusters.com/amazon.html

Epic Privacy Links: http://www.epic.org/privacy/

European Internet framework

Directive 2002/58/EC of the European Parliament.

http://publications.mediapost.com/index.cfm? fuseaction=Articles.showArticle&art_aid=84603

EU Topic Privacy and the Internet In Europe

The resulting legal framework is found mainly in Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data adopted on 24 October 1995 ("the Data Protection Directive"). This Directive is available at http://www.europa.eu.int/comm/internal_market/en/dataprot/law/index.htm

http://www.europa.eu.int/comm/internal_market/en/dataprot/law/impl.htm

This Directive provides that: "(i) personal data should be collected only for specified, explicit and legitimate purposes, (ii) the persons concerned should be informed about such purposes and the identity of the controller, (iii) any person concerned should have a right of access to his/her data and the opportunity to change or delete data which is incorrect and (iv) if something goes wrong, appropriate remedies should be available to put things right, including compensation of damages through the competent national Courts." http://news.com.com/2010-1069-962993.html?tag=lh

The European Commission (http://europa.eu.int/comm/index_en.htm) has published a new guide entitled "Data Protection in the European Union," which provides citizens and businesses with information on their rights regarding the collection and use of personal data and on what to do when their rights are violated. This Guide is available at: http://europa.eu.int/comm/internal_market/en/data

http://www.privacyinternational.org/intl_orgs/ec/dpd-proposed-amend-9-02.pdf

ON-LINE MORTGAGE FRAUD IN FLORIDA ?

2009-11-06T18:16:00Z

Website: http://www.sarasota.realforeclose.com We are wanting to nullify a sale which occurred over the above website. I am having a very difficult time finding out the ramifications of a literally "BROKEN" EULA contract. I have created a timestamped copy of how the website looked when we made our purchase: www.pangaea.to/srqrealforeclose.pdf please see page 6 of this agreement, you will see it is but off. the portion which is but off includes everything about the disclaimer, etc. and our I agree to the terms... you can see the REAL EULA on their sister website, manatee.realforeclose.com Can we legally nullify our contract with them? At present time, five counties of Florida offer, in conjunction with realforeclose.com, foreclosure sales online. These are not only mortgage foreclosures, but also a good number of condominium lien foreclosures. My husband and I have calculated that approximately 90% of all association lien foreclosure sales we've seen online, in three counties, have ended in disaster, either with a bidder vacating sale, trying to vacate sale, or sticking the bidder with purchasing a lien and eventually losing the property. Of course, this is only our fault, right? CAVEAT EMPTOR? Why are these Condominium Lien foreclosures on this website in the first place? What is indeed the intent of these public lien auctions disguised as Foreclosures, if not to find a dufus like me who will bid over them by one dollar and instantly pay the assessments in arrears? Let's say that the county feels an obligation to offer these lethal toxic assets to the public. Although the website claims it cannot guarantee any aspects of the shown properties in regards to liens, it must put in place safeguards to make sure that the public knows exactly what these condo lien foreclosures are: a completely different bird to a mortgage foreclosure.
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First Name: Erika
Last Name: Ginsberg-Klemmt
Phone:
Email: erika@srqus.com
Phone: 9412840057
Address: 3364 tanglewood drive
City: sarasota
Country: United Statesay be posted to the IBLS Community blog.:Yes

Defamation Lawsuit?

2009-10-29T18:49:00Z

Legal Issue:

I have a question. My information was put on Craig's List website for sex and other things, by somebody not myself. Is there anyway to sue or prosecute that person? I talked to local law enforcement and was told that because that person did not take money or anything like that there was nothing that could be done. Well, isn't slander and defamation of character against the law? Please let me know. Thanks. Kerry Burns

First Name: Kerry
Last Name: Burns
Phone:
Email: kerburns@iupui.edu
Phone: 2192042794
Address: 721 Barbados Drive
City: Indianapolis
Country: United States

Breach of Contract?

2009-10-26T17:48:00Z

I ordered a Sprinter Van manufatured by Mercedes Bentz. I made this order over the internet and requested this van with certain dimensions. The van I ordered was a 170 inch wheelbase, extended van body with a high roof. When the van was delivered, it was not the ext van which elimnated over 1200 sq.feet of cargo space. The company ( Freightliner of Cinn,Ohio "FYDA") claimed I never ordered or requested the extended model. Every internet correspondence over a period of 5 months always contained in my E-Mails to FYDA Freighliner included the following heading RE: 2007 Freightliner Ext 170 inch WB High Roof Sprinter Van.... Now they claim that I cannot sue them for not providing the extended van, in the State of New Mexico. That the jurisdiction lies in the state of Ohio. There is a clear breach of our agreement, and all communications were perpetrated from New Mexico to FYDA in Cinn, Ohio. We paid for the van by Certified Check from our Bank here in NM. Their claims are they don't regularly do buisness in the sates of New Mexico, and thus cannot be held liable nor does jurisdiction apply from the state of New Mexico. Is this true ? Can I seek re-dress in State or Federal Ct ?
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First Name: Marshall
Last Name: Massengill
Phone:
Email: massengillalbq@aol.com
Phone: 505-328-2458
Address: 10327 Heron Rd, SW
City: Albuquerque,NM
Country: United States
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Refund Refusal: Need US Representation

2009-10-26T17:36:00Z

Legal Issue:

I live in France and in January 09, I made a deposit to attend a self-improvement program hosted by a New-York City based company. At the time I made the deposit, the refund policy (displayed on their website) was that they could hold up to $500 of the money already received. Things came up and I'm now unable to make it to NYC and thus attend the program, but when I ask for a refund they refuse to reimburse me, by giving me false arguments. Moreover, since January, they changed their Terms of Service without informing me beforehand, and now I have no written evidence of what the ToS were when I signed up and they try to use that fact against me. What can I do? I know I'm in my right to get my money(~$2800).
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FIrst Name:Joel
Last Name: Marchand
Phone:
Email: anatolhenri@hotmail.fr
Phone: 0033646496551
Address: 32 gradne
City: Garches
Country: France

LAW FIRM for LIBEL Case

2009-10-23T20:48:00Z

Legal Issue:

Physicians are under attack in general. Some of the most distressing assaults come from doctor rating websites where any "nut job" who feels he didn't get value for his $10 co-pay can publish for the world to see any libel he wishes about his physician-victim without revealing his identity. Skill, training and professional reputation offer no protection. I'm looking for a law firm who will consider taking my case on contingency. I can identify the blogger.
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First Name: carol
Last Name: foulds
Phone:
Email: cfoulds@midwestdermatology.com
Phone: 913-814-8561
Address: 6730 w. 121st
City: overland park
Country: United States

Paypal Scam Payment?

2009-10-22T17:15:00Z

Legal Issue:

how long is acceptable scams? Hi! Dear,sir! I've paid DHgate with paypal for a particular item Oct. 13, 2009 10:56:16 PDT Transaction ID: 8R7070062N151135G,but the Company to date do not provide any clear answer.One day I receive confirmation ,that the money has been received, but after a few hours the opposite pattern, that money has been not received.Pay pal multiplexed, has confirmed that the account has money dhgate is creditedi.On my questions DHgate not answered.Can you something help me,please?Or ,must I write to Minisrty of Justice, the People's Republic of China Address: No.10 Nandajie, Chaoyangmen, Chaoyang District, Beijing 100020, China and National Bureau of Corruption Prevention of China NO.2 Guang'An Men Nan Jie, Xuanwu Disrict, Beijing 100053 With best regards,Viktors GraudinsCompany: Reality Research centre
First Name: Viktors
Last Name: Graudins
Phone:
Email: viktorsg123@inbox.lv
Phone: 371 29628572
Address: Unijas 24-29
City: Riga
Country: Latvia

VAT Levied on United States Internet Service Providers in the United Kingdom

2009-10-19T03:36:00Z

Between 1997 and 2001, the Commissioners of Customs and Excise did not subject foreign telecom suppliers supplying mixed packages in the United Kingdom to value added tax (VAT). Yet, after February 2001, the commissioners considered that foreign telecom suppliers could be subject to VAT when supplying mixed packages in the United Kingdom (UK) and it was proved that the provision of telecom services was the predominant part of any package of services supplied. Hence, from 2001 until 2003, foreign telecom suppliers in the UK were not subject to VAT. This rose complaints from UK service providers before the Customs and Excise Commissioners. Some of these complaints even escalated to judicial review. This article provides an example of a UK case where the UK service provider complained against the commissioners because a foreign service provider was not subject to VAT, although providing mixed package services in the UK.

In UK case of R (on the application of Freeserve.com plc) v. Customs and Excise Commissioners (America Online Inc, interested party), [2003] EWHC 2736, (hereafter Freeserve v. AOL) the administrative court was to decide whether telecom suppliers incorporated outside the European Union and supplying mixed packages services in the UK were subject to VAT. This case was decided before the European Union established a uniform taxation mechanism where anyone providing Internet services in the European Union is subject to VAT, including foreign providers.

The claimant in this case, Freeserve, was an Internet service provider (ISP) incorporated in the UK and supplying telecom services in that country. The claimant complained before the Customs and Excise Commissioners noting that foreign telecom suppliers were not subject to VAT and this created an unfair treatment. The Commissioners ruled against the claimant and the claimant sought judicial review. American Online (AOL) was an interested party to this dispute. AOL, a company incorporated in Delaware, U.S., supplied telecom services in the UK, including mixed package services. AOL was not subject to VAT between 2001 and 2003.

The Administrative court held that (1) the commissioners were under a duty to look and decide claimant’s case against AOL considering the administration of VAT as a whole; and (2) that one taxpayer had not judicial standing to bring judicial review proceedings against the taxing authorities with relation to the tax affairs of another. The court noted that there was an exception to this rule when the claimant had a peculiar interest in the impact of the decision taken by the tax authorities. In this particular case, the exception did not apply, the court said, because any AOL competitor would be able to seek judicial review and complain that AOL were not subject to VAT. Thus, Freeserve had no standing to pursue this judicial review and it was dismissed. This was distinguished from R v A-G, ex p ICI plc (1984) 60 TC 1.

After this 2003 case, the European Union has established legislation requiring ISP incorporated in countries outside the European Union to pay VAT when supplying services within the European Union. The relevance of the Freeserve case still reminds as to a UK ISP’s legal standing to bring judicial review for unequal application of VAT rules to a foreign-incorporated ISP rending services within the UK.

Hidden Video Cameras at the Workplace: is this a Violation of Privacy?

2009-10-14T03:39:00Z

Technology is invading people’s space and depriving them of their right to privacy. Installation of hidden video cameras at the workplace, for instance, is a current topic that deserves legal attention. Most employers, usually for security reasons, are installing surveillance systems at the workplace. Yet, some of these cameras are not conspicuously placed and may be directed to recording questionable activities. Is installing hidden video cameras at the workplace a violation of privacy? This article presents California’s Supreme Court position on this issue.

Consensual video surveillance by private parties is considered legal under state tort laws. Thus, once parties consent to this surveillance at the workplace, there is no reasonable expectation of privacy. Yet, the legal issue arises when employers secretly install cameras at the workplace. In the California case of Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (2009), the Supreme Court of California was to determine whether an employer’s surveillance camera installed at the workplace, without the employee’s knowledge, constituted a violation of the employee’s reasonable expectation of privacy.

In Hernandez, the employer defendant placed surveillance cameras in plaintiff employees’ offices at the workplace. The employer’s intention was to know who the person accessing sexually explicit websites was. It seems that this person accessed the company’s Internet after office hours. Plaintiff employees stayed after office hours and sometimes –closed doors-changed clothing before leaving for after-work exercise. Also, plaintiffs were women and they showed each other their postpartum marks. These events were recorded. Plaintiffs sued employer for invasion of privacy under state common law and state Constitutional principles, and for intentional and negligent infliction of emotional distress. The trial court dismissed the case. The California Court of Appeal reversed. The case went to California Supreme Court, which reversed the judgment of the court of appeal in so far as the privacy claim, and allowed plaintiff employees to proceed at trial.

The Supreme Court held that a privacy violation based on common law tort of intrusion has two elements: “(1) the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy.” (2) “the intrusion must occur in a manner highly offensive to a reasonable person.” “These limitations on the right to privacy are not insignificant. Nonetheless, the cause of action recognizes a measure of personal control over the individual's autonomy, dignity, and serenity. The gravamen is the mental anguish sustained when both conditions of liability exist.” Further, the Court held that the defendant must have penetrated a zone of physical or sensory privacy or obtained unwanted access to data by electronic or other means, in violation of the law or social norms. In any circumstance, the expectation of privacy must be objectively reasonable. This reasonableness is linked to three factors: the identity of the intruder, the extent to which other persons had access to the subject place, and the means by which the intrusion occurred.

Regarding the right to privacy under California Constitution, the Court held that its elements are similar to those under common law tort. The plaintiff must meet three requirements: (1) he must possess a legally protected privacy interest. This includes conducting certain activities without observation, intrusion, or interference as established by social norms; (2) plaintiffs’ expectation of privacy must be reasonable. Here, we have to examine customs, practices, and the setting surrounding particular activities, as well as notification and consent to the intrusion; (3) plaintiff must show that the intrusion is serious in nature, scope, and actual or potential impact as to violate social norms.

After setting the standards for privacy violations under state common law torts and state Constitutional law, the court held that a jury could have found that the required intrusion existed. Therefore, the court held that, although plaintiffs’ privacy in a shared office were not absolute, “they had a reasonable expectation of privacy under widely held social norms that the employer would not install video equipment capable of monitoring and recording their activities—personal and work-related—behind closed doors without their knowledge or consent.”

Import to Brazil

2009-10-12T16:59:00Z

hi... I wonder how I can buy a bike kx250f in the United States of America or in China and bring the bike to Brazil with certainty that she checks up to me and not get stopped in customs, I would like to know which documents to import and value rates, and would not be necessary because emplacar and a motorcycle off-road this bike costs around $ 3500.00 thanks .

Company:smalcell celulares ltda
First Name: mateus
Last Name: assuncao
Phone:
Email: mateus.assuncao@hotmail.com
Phone: 555555555555
Address: r raimundo
City: bh

The Single Publication Rule Applied to Internet Defamation

2009-10-12T01:11:00Z

Certain traditional torts such as defamation are gaining significance in cyberspace. Internet defamation has risen and will continue rising as the Internet penetrates our lives. In the United States, for instance, there are numerous precedent decisions solving particular issues of defamation when this tort is applied to the cyber world. It is interesting to observe how the first Internet defamation cases have addressed those same basic principles that once traditional defamation cases addressed. The single publication rule is one of these basic principles, and this article briefly shows that most U.S. state courts favor its application to Internet defamation cases.

One of the most important elements of the defamation tort is that the defamatory statement must be libelous. When the publisher of the libelous matter makes it available to its intended audience, the tort is completed (provided that the other elements, not a subject of this article, are met). Publication is complete on the last day of the mass distribution of printed copies. Williamson v. New Times, Inc., 980 S.W.2d 706, 710 (Tex. App.--Fort Worth 1998). The statute of limitation precludes victims of defamatory statements to file lawsuits after the statute of limitation expires (usually 1-2 years). For purposes of the statute of limitations, the period starts to run when the publication is complete. This is commonly known as the “single publication rule.” The purpose of this rule is to prevent stale and repetitive claims against publishers. See, Holloway v. Butler, 662 S.W.2d 688, 692 (Tex. App.--Houston [14th Dist.] 1983). Separate printings of a libelous matter are considered subsequent publications.

Thus, the single publication rule is extremely important because it determines when a legal claim is within or out of the statute of limitation period. Whether the single publication rule applies to Internet defamation cases is still a controversy. Some argue this rule should apply, while others claim it should not apply to Internet cases. Some supporters, for instance, argue that application of the single publication rule to Internet defamation may create abuse, but support its application when the website is truly available to the public. See, Cyber-Defamation and the Single Publication Rule, 81 B.U. L. REV. 895, 913-14 (2001). Others claim that the single publication rule should not apply to Internet defamation. See, Internet Publications and Defamation: Why the Single Publication Rule Should Not Apply, 32 GOLDEN GATE U. L. REV. 325, 332-37 (2002). Among the ones opposing its application, we find the ones that hold that Internet defamation cases should consider the continuous publication rule. This means, that republication occurs when each viewer accesses a defamatory article from a website.

New York is one of the few states that first applied the single publication rule to Internet publications. In the case of Firth v. State, 98 N.Y.2d 365, 775 N.E.2d 463, 466, 747 N.Y.S.2d 69 (N.Y. 2002) (Firth, in short), the plaintiff sued the publisher of a report that was published on the Internet. Plaintiff argued the continuous publication rule. He claimed that each day the report was available on the Internet, it constituted a new publication. The court held that "a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants." The court also held that application of this rule to the Internet would cause an inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet. Thus, the court held that the single publication rule applied to Internet publications. California, Georgia, New Jersey, and Texas have also applied the single publication rule to Internet publication and defamation.

Therefore, it is likely that U.S. state courts will continue the trend and apply the single publication rule to Internet publications and defamation. Public policy favors application of this rule for the benefit and the development of the Internet; choosing otherwise will create judicial chaos because it could bring massive lawsuits and endless litigation.

International Tax Question

2009-10-09T21:08:00Z

Company: M/UX, Inc.
First Name: Liz
Last Name: Zainasheff
Phone:
Email: liz@mux-ed.com
Phone: 916-226-2536
Address: 9245 Laguna Springs Drive, Suite 315
City: Elk Grove
Country: United States
==============================

============

Legal Issue:

M/UX delivers technical training via the internet that originates in either California, Colorado, or Arizona. The students take the training from their home or work in any country in the world. What international tax laws apply to this type of e-commerce?

Multi-National Shareholders?

2009-10-07T23:24:00Z

Me and a friend of mine will be starting a business together. My friend is from US and I am in India. He has setup a firm and wants to give me some shares for the same. How would be this possible as I am a citizen of India and he is from US. Is there a possible way we can be partners accross countries & continitents? Is there a way he can have me as a share holder in his company?

First Name: Pranay
Last Name: Arora
Phone:
Email: pranayarora81@gmail.com
Phone: 9818811774
Address: B-118, Dayanand Colony, Lajpat Nagar - 4
City: New Delhi

Data Processing Services under the Australia-India Double Taxation Treaty

2009-10-05T02:48:00Z

Double taxation avoidance agreements are significant for e-commerce transactions and, particularly, for transactions involving foreign outsourcing of data processing services. Application of these agreements, however, may turn complex in cases involving technology and data processing services. This article provides a practical example of the application of the double taxation avoidance agreement between Australia and India in the context of data processing services.

Australia and India entered into a Double Taxation Avoidance Agreement (DTAA, in short) in 1992, 194 ITR Statute 91. This tax treaty provided allocation of taxing rights between the contracting states. Regarding royalty payments, Art. 12(3) of the agreement defines what constitutes royalty payments. Art. 12(3)(a) says that royalty payments include those made for “the use of, or the right to use of, any copyright, patent, design or model, plan, secret formula or process, trade mark, or other like property or right.” Also, it would be a royalty payment, according to Art. 12(3)(b), when the payment is for "the use of, or the right to use, any industrial, commercial or scientific equipment." Art. 12(3)(c) provides that when the payment [from one company to the other foreign company] is for “the supply of scientific, technical, industrial or commercial knowledge or information,” this payment should be considered royalty for purposes of Art. 12(3).

The following also constitute royalty payments according to Art. 12(3): “(d) the rendering of any technical or consultancy services (including those of technical or other personnel) which are ancillary and subsidiary to the application or enjoyment of any such property or right as is mentioned in sub-paragraph (a), any such equipment as is mentioned in sub-paragraph (b) or any such knowledge or information as is mentioned in sub-paragraph (c); (e) the use of, or the right to use (i) motion picture films; (ii) films or video tapes for use in connection with television; or (iii) tapes for use in connection with radio broadcasting; (f) total or partial forbearance in respect of the use or supply of any property or right referred to in sub-paragraphs (a) to (e); or (g) the rendering of any services (including those of technical or other personnel) which make available technical knowledge, experience, skill, know-how or processes or consist of the development and transfer of a technical plan or design; but that term does not include payments or credits relating to services mentioned in sub-paragraphs (d) and (g) that are made; (h) for services that are ancillary and subsidiary, and inextricably and essentially linked, to a sale of property; (i) for services that are ancillary and subsidiary to the rental of ships, aircraft containers or other equipment used in connection with the operation of ships or aircraft in international traffic; (j) for teaching in or by an educational institution; (k) for services for the personal use of the individual or individuals making the payments or credits; or (l) to an employee of the person making the payments or credits or to any individual or firm of individuals (other than a company) for professional services as defined in article 14.”

According to Indian tax law, Income Tax Act 1961, Art. 90(2), the provisions of this tax treaty prevail over domestic law unless the domestic law is more beneficial to the assessee.

In the Indian case of Kotak Mahindra Primus Ltd. v. Deputy Director of Income-Tax, the court was to decide whether the Indian tax authority could demand an Indian company to withhold tax at 15% from payments made to an Australian company. Kotak Mahindra Primus Ltd (Kotak) is an Indian company jointly formed by the Indian company Kotak Mahindra Finance Limited, and a United States company named Ford Credit International Inc. Kotak is engaged in the business of providing finance for car purchases. Kotak contracted data processing services with an Australian company named Ford Credit Australia Limited.

The Indian tax authorities demanded Kotak to pay withholding tax at 15% from payments made to the Australian company. Kotak claimed not such payments were required under the Australia-India DTAA. The Indian court reviewed the Australia-India DTAA, particularly Art. 12 regarding royalty payments, and concluded that Kotak was not required to pay this withholding tax. The court specifically analyzed Art. 12(3)(a), (b), (c), and (d) because they were relevant to the issue of whether payments for data processing services constitute royalty payments for withholding tax purposes. Regarding possible application of Art. 12(3)(a), the court held that payment for data processing are not payments for the use of software. Regarding royalty payments for the use of scientific equipment, Art. 12(3)(b), the court held that data processing does not required the exclusive use of mainframe computer. Although data processing services involve the use of mainframe computers, they did not exclusively required control or physical access to that mainframe computer. Art. 12(3)(c) does not apply, the court held, because data processing does not involve the transfer of knowledge or information. Indeed, the information is supplied by the Indian company to the Australian company, and the later just processes that information. Lastly, the Indian court held that payments for data processing services are not royalties under Art. 12(3)(d) because those services do not constitute consultancy services. Payments to the Australian company are not made to obtain any technical knowledge, experience, skill, know-how or processes.

Therefore, the Indian Income Tax Appellate Tribunal in Kotak held that “a company's payment to an Australian company for data-processing services was not a royalty payment under the Australia-India income tax treaty and that no Indian withholding tax was due.”