Newsletter – August Edition 4 set 2018

Newsletter – August Edition

INTELLECTUAL PROPERTY

Use of computer programs without the proper license agreements generates an obligation to indemnify its author

Dear Sirs.,

In June, the 4th Civil Court of the Federal District Court of Appeals published a decision which upheld the verdict that convicted a company for  the undue use of software without the proper licenses.

The lawsuit was filed by Microsoft Corporation and Adobe Systems Incorporated against a company that used Plaintiffs’ software without having acquired the proper licenses. The Plaintiffs required the payment of ten (10) times the value of each software that was used irregularly.

In the lawsuit, a favorable decision was granted condemning the Defendant to pay damages corresponding to five times the value of each software used irregularly.

The Defendant then filed an appeal alleging that the conviction was illegal given the fact that the products would have been made available free of charge on Plaintiffs’ websites.

However, the state appellate court considered that the ownership of the software was uncontroversial and that the products used were not free, based on the expert investigation performed on the Defendant’s computers.

In the opinion of the Court of Appeals judges, the Defendant’s attitude disrespected the lawful use of software, which, according to article 9 of the Copyright Law (Law 9,609 of February 19, 1998), is subject to the existence of a license agreement.

In the decision, the reporting judge stated that the conduct of the Defendant characterized counterfeiting, as provided for in Articles 5, VII and 29, I and IX of the Copyright Law, creating an obligation to indemnify the author of the software.

In view of this, the initial conviction, corresponding to five times the value of each software used without the licenses, was upheld based on the understanding that the monetary penalty could not be restricted to the price of the products, due to the compensation and repressive character of the conviction and the intention of discouraging the practice of unlawful conduct.

In case of any doubts about this subject, please do not hesitate to contact us.

 

DATA PROTECTION

MPDFT investigates how YouTube treats Brazilian children’s data

Dear Sirs.,

The Personal Data Protection Commission, created at the end of 2017 by the Public Prosecutor’s Office of the Federal District and Territories (“MPDFT”), has initiated a public civil inquiry to investigate how YouTube treats Brazilian children’s data.

The investigation was established by Ordinance No. 04/2018, based on the fact that YouTube’s terms of service state that the user of the platform “claims to be over 18 years old or to be emancipated, or to be in possession of legal authorization of the parents or guardians, and fully able to consent to the terms, conditions, obligations, representations and warranties described in the Terms of Use […] “, even though the platform is used by children and even have an application called “YouTube Kids”.

In addition, MPDFT verified that the search for the expression “for children” on the website dicloses 16.7 million results, making it clear that the platform provides a large number of content aimed especially for children.

MPDFT further argues that Google, the owner of YouTube, has in its privacy policy that it collects a wide range of information from its users, such as name, email address and telephone number.

In view of the above, the Personal Data Protection Commission understands that in practice, YouTube is treating data from children without the consent of the parents or guardians, including for publicity purposes.

Based on the information obtained by MPDFT, the Inquiry will investigate how Brazilian children’s data is being treated by YouTube.

In case of any doubts about this subject, please do not hesitate to contact us.

 

KEY CONTACT:

Paula Mena Barreto
Partner
T: +55 21 3262-3028
E: paula.menabarreto@cmalaw.com

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