Court Rejects Outright Infringement Proceedings Against IKEA Relating to Stuffed Animals

The Québec Superior Court (the “S.C.”) recently threw out a copyright infringement lawsuit alleging that IKEA had copied a line of stuffed animals from a local artist. Notwithstanding the resemblance between the concepts of the stuffed animals at issue, the court rejected the suit offhand, because it did not relate to any work recognized as such by the Canadian Copyright Act.

The case at issue, Bouchard v. Ikea Canada (2021 QCCS 1376), which pitted a Québec-based artist to the international retailer, alleged that IKEA had illegally copied a line of stuffed animals from Ms. Bouchard, which it then sold in its stores as the Sogoskatt collection. Faced with what she perceived to be a copy of her works, Ms. Bouchard filed copyright infringement proceedings against several parties, including IKEA, before Québec courts.

Unfortunately for Ms. Bouchard, Ikea managed to torpedo her lawsuit at an early stage. To do so, it filed a motion to throw out the case outright because, at law, there really was no real issue to be tried. After examining the motion at issue, the S.C. agreed this case did not present any real issue the judicial system should bother analyzing and taking on. Since this case was introduced as a copyright matter, without any “works” to justify the proceedings at issue, the courts should refuse to further hear the case. Period.

The explanation of this rejection of the case resides in what Ms. Bouchard argued was hers and which IKEA had illegally copied. Namely, the artist testified that, notwithstanding IKEA’s own stuffed animals being different from her own creations, she considered that there were substantial similarities reproducing the distinctive “style” or “look” of her own line of stuffed animals. Unfortunately for her, as you probably know, copyright law does NOT deal well with abstracts like inspiration, ideas, concepts, styles, etc. Rather, copyright is generally concerned with specific works being copied to a substantial degree. Before looking at the substantial degree to which a work has been copied, however, you first need to have… well… a “work”, as defined by the Copyright Act. No work, no possibility of any infringement.

In the case at issue, the works which the artist alleged had been copied had not been copied, or if there was a copy, it was the copy of a style, of a certain look or that of a certain way to make stuffed animals. This, of course, did NOT constitute a copy of the works (the actual stuffed animals) themselves, only of a sort of concept for stuffed animals such as these.

As a result, the S.C. had little trouble throwing out Ms. Bouchard’s case against IKEA. Sorry, but alleging you have a monopoly over a certain style of something does not a monopoly make. Sure, you may be the inventor of a new style or concept of something, but that does not mean you have the exclusive rights to it, at least certainly not by virtue of copyright law. Had this case been presented based on invention or patent rights, industrial designs or trademarks, it may have stood a chance but copyright does NOT extend to abstracts like concepts, ideas and styles. It never did and never will.

Eh Dude, Your Car’s Leaking. No, Not Oil: Data

The online magazine The Intercept recently published an interesting piece entitled YOUR CAR IS SPYING ON YOU, AND A CBP CONTRACT SHOWS THE RISKS which I highly recommend. If you didn’t know it, yes, your car does generate a lot of data and even downloads some of it from mobile devices which connect to it over time. In a sense, nowadays, a car is a sort of mobile computer, shock full of data. What may not be apparent to the layperson is that a car in this day and age generates and retains A LOT of data pretty much any time a human interacts with it.

Though the article at issue focuses on the use of your vehicle’s data by law enforcement (when investigating crime), if you ask me, the true story actually goes quite beyond that, including the use of such data by private businesses.

Surprisingly, accessing the data held by a modern-day vehicle isn’t actually this complicated—you just need the know-how and the right tool. If you’re really determined to do so, plugging into a car these days and extracting troves of data is apparently pretty straightforward. For example, in case of accident or other incident with an insured vehicle, the insurer may send an investigator armed with the right tools to download the car’s data, which can then be analyzed at leisure, including to try and find out why the insured’s claim should be denied. Almost any car on the road today includes such capabilities and functionalities akin to a plane’s black box.

The article specifically discusses one particular tool called iVe, a product by a company called Berla. The iVe toolbox includes both hardware and software components, and even has its own mobile app, so as to make things easier for investigators in the field.

This particular tool may be used to siphon all data contained in a vehicle’s circuits, for example to further an investigation either by the police or an insurer. The product then facilitates identifying, accessing and analyzing various types of information found in modern-day vehicles—you’d be surprised how much there may be. The company’s website claims its product can be used to uncover things like:

  • Geolocation data, including what roads or streets the vehicle was driven on, etc.;
  • Events which the vehicle encountered and recorded through any of its sensors;
  • Media files (content) that a user downloaded or accessed using the on-board infotainment system (music, podcasts, etc.);
  • A list of the specific mobile devices that users connected to the vehicle over time, etc.

In practice, it seems one may even go so far as to obtain a copy of the list of contacts from mobile devices that users connected to the vehicle, the history of SMS and emails on those devices, the list of incoming and outgoing calls, the list of songs played through the on-board infotainment system, etc.

Incident which a car records may, of course, include accident-like events, but also things that the average driver may not realize are being recorded, including:

  • The speed at which the car is travelling at any given moment;
  • The changing of gears and the engine’s RPMs at any given moment;
  • Sudden acceleration or breaking;
  • The fact that the headlights were either turned on or off;
  • The opening or closing of doors; etc.

So, you were listing to PARANOID by Black Sabbath and texting your friend Mike while driving down this country road at 163 km/h, and then lost control? Yeah, your insurer can find out, for sure. In fact, almost any action taken by the human operator of the vehicle may be recorded (even more so if you plugged in your cellphone), something the average driver may not realize. The fact that this is generally not clearly disclosed to the public does play into the hands of insurers and law enforcement, as it does make their job somewhat easier when investigating incidents involving vehicles.

If it may provide some measure of comfort to you, iVe does not come cheap. The article to which we’re linking above mentions purchasing that tool for tens of thousands of dollars. At that price, your insurer (or its investigator) probably bought one, but not your next-door neighbour, even if he’s really into cars.

This is a good example of the behind-the-scene changes turning everyday objects, like cars, into electronic gizmos. If you thought a car was still just a car, you are very much mistaken it seems. In today’s world, accessing the data in that car can reveal a whole lot about you, your driving habits, including where you’ve taken that car, and how. And contrary to what some people may think, it does NOT require a whole team of CSI-like investigators merely to connect to your car.

Alleged Flaws in Cellebrite UFED May Allow Throwing Out of Locked Smartphones Evidence

It is inevitable in today’s world that law enforcement is sometimes faced with mobile devices that a suspect locked prior to their seizure by authorities. Locking your devices is good common sense security: This goes for you and I, and, yes, for criminals. As a result, the police will sometimes need to break the encryption on such mobile devices in order to get to the data within, either for investigative or evidentiary purposes. That’s when tools such as Cellebrite UFED come into play. By using UFED, law enforcement can break into otherwise secure devices, such as iPhone smartphones, and get to the data within.

Unfortunately for the prosecution side, someone recently obtained access to UFED and analyzed its security features. These were found to be, shall we say, lacking. Indeed, according to Moxie Marlinspike (creator of the Signal app), ironically, cybersecurity isn’t exactly UFED’s strong suit. In fact, according to his report, after looking at the product, he believes this tool’s security is so weak that even scanning a booby-trapped device may result in an alteration of the data that was or is later extracted using UFED.

In short, in their efforts to secure some evidence, it seems that some police forces are using a tool whose reliability may be called into question. Indeed, if the tool at issue cannot be counted on to provide data that is a reliable record of what really was found in a particular device, should such evidence not be thrown out?

Legally, the fact that a tool used to extract information is prone to tampering may not bode well for convictions obtained on the basis of the resulting evidence, at least if the vulnerabilities reported by Moxie Marlinspike can be substantiated. Some American defense attorneys intend to argue against convictions secured by the authorities based on evidence extracted from locked smartphones. This could lead to the need for new trials in some cases.

UFED is apparently used by many law-enforcement agencies throughout the world. We don’t yet know how many convictions this inconvenient revelation may eventually allow defence attorneys to call into question.

This is yet another example of the perpetually problematic relationship between cybersecurity and the law.