The success and failure of Steve Jobs

December 12, 2011

A review of Walter Isaacson, Steve Jobs: The Exclusive Biography, Little, Brown, London 2011.

By Julian Thomas

Malcolm Gladwell’s recent New Yorker piece (14 November 2011) offers a familiar, contrarian view of Steve Jobs’ career and significance. The key theme is drawn from Walter Isaacson’s extraordinary new biography: the dazzling successes of Jobs, together with his signal failures as a technology entrepreneur, were not the result of great vision or technical genius. Instead, Jobs’ significance lies elsewhere. He was an adept appropriator of other people’s ideas. He unfailingly recognized failure in other people and things. He had a perfectionist love of “closed systems” — that is, he could not relinquish control over the uses and applications to which Apple’s devices might be put. So the machines that Jobs introduced and helped invent – the computers, phones, tablets, and music players – embodied both his strengths and weaknesses; they were and are distinguished by being both brilliantly designed and obstinately difficult to adapt, extend, or modify.

The last three decades of computer history, and the debates that have raged over innovation and control in the technology business, are the background to Isaacson’s book. In a sense he has written, almost inadvertently, a biography of a certain kind of intellectual property. The foreground narrative is a rich new source of Jobs folklore, and this is what occupies Gladwell, and presumably many other readers. Some, maybe most, of these new stories confirm the nightmarish picture of Jobs’ manic, profligate pursuit of technical innovation. Again and again, Isaacson’s protagonist drives himself and others to extraordinary lengths by his oppressive, relentless, contemptuous, and sometimes ridiculous perfectionism. Towards the end of the book, Jobs’ expresses his disappointment in President Barack Obama, whom he thinks is reluctant to offend people. “Not a problem I ever had”. In Gladwell’s version, Jobs’ real significance is as a flawed example of a specific kind of technology developer and marketer. He is the archetypal ‘tinkerer’, not an original inventor, but an improver and tweaker of other people’s ideas. His skills are ‘editorial’, not inventive; his products are derivative, their development driven not by an original vision on Jobs’ part, but by his caustic, unerring grasp of the weaknesses of his competitors. Nothing Jobs did, in this account of things, was entirely new. The Mac’s great original selling points, its graphical user interface and bitmapped screen, were borrowed from technology developed by Xerox. The first versions of tablet computers were produced elsewhere, as were smartphones and music players.

Jobs’ tale, then, is about adaptation and appropriation, and these attributes, for Gladwell, turn out to be the essence of economic progress. Far more than the breakthroughs of visionary inventors, it was the work of engineers and technology entrepreneurs in taking ideas from elsewhere and improving them that powered the industrial revolution in Britain through the nineteenth century. As a tinkerer in this vein, Jobs achieved great things. But his tinkering has an unusual characteristic: his perfectionism, which was necessary to his success, also led him to jealously refuse others the freedom to adapt and modify that he enjoyed.  He was a tinkerer who perversely created obstacles to the tinkering of others, whether amateur users, or firms wanting to make products that would work with his. He resisted suggestions that the early Apple computers should include more (or any) expansion ports for third party add-ons; he struggled with the idea and consequences of licensing operating systems at Apple and NeXT; he tied the iPod to the iTunes store, and would not allow other music stores access to the device. And now, in the case of the newer iPhone and iPad, the development and distribution of third part applications is strictly controlled through the App Store. At the same time, Jobs is enraged when others copy his ideas: he sues when Microsoft copies the Mac’s “look and feel”; he goes ballistic when Google launches the mobile operating system Android, which he believes steals ideas from the iPhone.

So in Gladwell’s account, Jobs was an innovator who lacked the modesty and self-awareness to understand his own role and achievement. He was a ‘tweaker’ (no dishonor in that) who imagined himself a visionary. Famous from early on for his “reality distortion field,” he deceived himself, and became an innovator who stood in the way of innovation. Other contemporary commentators on technology have taken this theme further: Jonathan Zittrain’s The Future of the Internet (And How to Stop It) presents the iPhone as the ultimate ‘tethered device’, designed to ensure Apple’s control over users’ applications and content. For Zittrain, the iPhone is a salutary contrast to the ‘open’ architecture of the classic PC, which, for all its faults, could be far more readily adapted and modified by users and third party businesses. Here we find an old line of argument, that “openness” (and the associated goodness of “open source”) is the real recipe for innovation and inexpensive distribution. In the case of computing, it’s hard to argue with: even deep within the iPhone, there is POSIX, and elements of BSD Unix. The striking thing is that the closed iPhone has itself sparked an amazing wave of innovation. Whole new kinds of software, including locational media and games, educational, creative and social software, have been developed, and are readily and cheaply available for Apple’s devices. The good thing for everyone is that all this new software is now also spreading to a host of other phones and tablets, including the freely licensed (if not precisely open source) Android machines.

Isaacson’s book participates fully in the “closed system” narrative. But it also presents the elements of a more complex and interesting picture, of someone who did possess an unusual intuition for the design of useful machines; and of someone who modified his business strategies as his career progressed. Jobs did want control, and more of it than many of his customers would like, but he also realized he had to make the iPod compatible with Windows machines, and he opened the iPhone to third party developers after originally resisting the idea. He obviously hated Android, but he knew also that Apple had to compete with it. If he was a tweaker, he was (to use a metaphor that would not usually be applied to a Californian) in the Shane Warne league. But I’m not sure that tweaking aptly describes what Jobs did. It should not be difficult to acknowledge that he, together with many others, created novel things, even if they did so on the basis of the work many others had done: after all, that is usually the way. Some of this creating certainly involved adapting, or ‘editing’, but it also required acts of imagination. Gladwell’s generally precise language is vague when he describes Apple’s famous appropriation of the graphical user interface from Xerox: he says Jobs “borrowed the characteristic features of the Macintosh — the mouse and the icons on the screen” — from the engineers at Xerox PARC”.  Whatever that sentence means, in fact Apple successfully and almost completely transformed both the mouse and graphics: the machines it produced in the following years were clearly major advances on Xerox’s Star.

Anyone interested in contemporary debates over innovation and intellectual property will have their own reading of Isaacson’s book, and their own sense of the stakes in Steve Jobs’ daring adventures. Some of the most interesting elements of the story concern the way Jobs re-organised Apple around his characteristically ambitious and romantic idea of connecting the humanities with technology. In a couple of presentations he used the image of an imaginary intersection between two streets: ‘liberal arts’ and ‘technology’. Design and engineering were to be deeply connected in the conception of new products, even if that meant that everything was more difficult, more protracted, more risky, and more expensive. Sometimes in his career Jobs overcooked the aesthetics, but Apple’s results in the end justified the effort. Like much else in Jobs’ story, ideas and aspirations of this kind help us think again about the assumptions we make about computers and their places in our lives, about the relations between technical and creative innovation, the unexpected places we find novelty, and the persistent question of who owns what.

 

Julian Thomas is Director of the Swinburne Institute for Social Research

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When Should Privacy Be Legally Protected?

November 4, 2011

By Megan Richardson

There’s been a lot of talk in recent weeks about the need for a statutory privacy tort. This comes in the wake of the Murdoch press’s phone hacking scandal. Even before then there were the reports of the challenges that social media sites such as Facebook and Twitter and their millions of users offer to the privacy of users, their ‘friends’ and others discussed. The apparent trends towards untrammelled publicity suggest that not only sporting figures and other celebrities may find themselves constantly on show to their voracious audience, despite their efforts to prevent this happening. Now we are seeing a multitude of ordinary and sometimes quite vulnerable people also suffering inconvenience and distress and even deeper harms from the prying eyes and gossipy comments of others. Indeed given that ordinary people and celebrities are often not that different it is easy for these two groups to overlap – I would say Lara Bingle is a good example here. So perhaps it is not surprising that the public pressure for more effective legal privacy protection might be increasing.

To demonstrate its sincerity in tackling the possible problem of privacy the government has recently published an Issues Paper asking the Australian people for advice on the need for a new statutory tort. In fact, this represents just one more stage in a constant public consultation program on the benefits (or not) of a statutory cause of action in privacy. In 2008 the Australian Law Reform Commission made recommendations for a statutory privacy tort, after a substantial review including a nation-wide program of consultation. Following that report there were further reports from the New South Wales Law Reform Commission (in which I was involved as a member of an expert advisory panel) and the Victorian Law Reform Commission, both also coming at the end of a program of public consultation. And both also recommended statutory causes of action for invasions of privacy (although in each case these were slightly differently framed). So it seems that there is considerable public support for a statutory privacy tort. But would this bring all the benefits proclaimed?

My question here is not about the possible benefits of a new statutory action. It is true that our existing law already provides a significant degree of protection to privacy, through the actions such as breach of confidence, defamation, passing off, harassment, and intentional infliction of emotional distress. Breach of confidence especially functions as a privacy doctrine, being based on an idea of trust and confidence that information that is not a matter of ‘public knowledge’ will be treated according to the wishes of the party it concerns. (It would have been the obvious action for the Australian Defence Force Academy cadet who recently discovered that images of her engaging in sex had been secretly streamed to her partner’s friends.) But a statutory action for invasion of privacy would provide greater transparency than an action which is not framed around privacy – in the same way that the statutory tort of misleading or deceptive conduct is more transparent than the traditional common law misrepresentation and passing off actions. It could also usefully provide more avenues for enforcement than the courts, utilising the federal and state information and privacy commissions. And it would hopefully be more easily updated than the slow-moving incrementally-adapting common law to accommodate new situations and circumstances.

And the benefits would not only have to be on the side of privacy claimants. A statutory public interest defence, as recommended for instance by the Victorian Law Reform Commission, would provides a vehicle for interests in privacy and publicity to be balanced on a case by case basis – providing a clear basis for protecting free speech while not conceding automatic and absolute priority when it comes to speech which involves or results from an invasion of other’s privacy. There are many cases where a balance between privacy and free speech may seem relatively straightforward. The leaked shower photo of Lara Bingle is a good example. Here the free speech argument for publication is weak to non-existent compared to Bingle’s claim for privacy. Or, to take another real-life example (from the 2006 case of Australian Broadcasting Corporation v O’Neill which went to the High Court as a defamation case), the public interest in revelation on the ABC of a convicted child killer’s confession to an undercover journalist (and former police officer) that he had killed other children seems very strong even in the face of his claim for protection of privacy. For the revelation not only raises questions of public safety but also of the operation of the justice system.

Of course not every case would be so straightforward. For instance, there is the controversial English case of the blogger ‘NightJack’ who became famous for his insider’s account on the life of a serving police officer and then found that The Times proposed to publish his true identity having discovered this via a journalist, using ‘mainly’ internet sources (the other sources were less clear). The blogger sought an injunction on the basis that the information as to his identity was ‘private and confidential’, that he gone to lengths to secure his identity, and that those who knew he was NightJack also knew this was private and confidential – adding, moreover, that there was no clear public interest that justified publication in The Times. The judge refused an injunction on the grounds that, first, blogging is a ‘public activity’ and, second, the public interest supported public exposure of the blogger’s violation of the police code of practice. It may be wondered whether blogging should be deemed to be such a ‘public activity’. But I am sympathetic to the argument that on balance the public interest supported the publication. In any event, the blogger (Richard Horton) seemed to accept the finding. He wrote a follow-up article of his own in The Times where he talked about his motivations and at the same time expressed loyalty to the police force (which had for its part had limited its penalty to a warning). Needless to say, he showed less sympathy for idea of the inherently public nature of blogging. Why would he?

But the question whether a statutory privacy tort would bring all the benefits that have been claimed by its supporters still has to be asked. The question comes down to how the tort would be framed as a matter of statutory language. One question currently being considered is whether a privacy claimant should have to show that the violation of privacy would be ‘highly offensive to a reasonable person of ordinary sensibilities’, as recommended by the Australian Law Reform Commission. The Victorian Law Reform Commission made a similar recommendation. But it was not the recommendation of the New South Wales Law Reform Commission. And there are several (including myself) who have argued that a high offensiveness standard would be an onerous and unfair standard for a privacy claimant. It would effectively carve out a sphere of absolute protection for speech and other conduct which invades a person’s privacy according to that person’s own lights, not on the basis of any public interest in knowing the information but simply on the basis that a ‘reasonable person of ordinary sensibilities’ would not be highly offended. What justifies the ordinary/reasonable person’s involvement in filtering individual privacy claims in this way?

Certainly, this standard is not historically part of our law. For instance, our action for breach of confidence is traditionally premised on allowing individuals to decide how seriously concerned they are about the public discussion of their affairs – that was noted by Mason J in the 1980 defence papers case Commonwealth v John Fairfax & Sons (pointing out that the government should be held to a higher standard). Although Gleeson CJ hinted that a high offensiveness standard might be a useful adjunct to the breach of confidence action when used to protect privacy in the 2001 case of Australian Broadcasting Corporation v Lenah Game Meats, operating as a ‘useful practical test’ in scenarios where information was not ‘necessarily private’, there was no suggestion there that it should be erected into a threshold that might deny protection to otherwise private information. Nor does it come from the United Kingdom’s statutory provision for privacy in the Human Rights Act 1998 (implementing the Article 8 right to private life in the European Convention on Human Rights). And the UK courts for their part have rather preferred as the starting point for assessing a privacy claim a ‘reasonable expectation of privacy’, treating this as a matter to be judged from the perspective of the claimant, not the audience which is seen to have its own vested interest in publication (given its role as consumer). In fact, the highly offensive standard comes from the US privacy torts which are notoriously difficult to satisfy. In practice, not only does this threshold carve out a protected zone of privacy-intrusive free speech. It takes the majority’s will as the proper standard of what a privacy expectation should be. While this might make sense in a jurisdiction which has erected freedom of speech to an overriding constitutional imperative, in jurisdictions (such as ours) where freedom of speech is traditionally treated in a more balanced and fact-specific way it would be a curious development in our law. Why should we import this US standard into our law, especially when the American attitude to privacy is historically so different from our own?

Perhaps the language of ‘highly offensive’ to an ordinary/reasonable person could be read differently in an Australian context than an American one. I would hope so. In the US, courts refused to uphold a privacy claim brought by a chronically private former child protégé, now a recluse, who was exposed in an article in The New Yorker using information obtained by an undercover journalist masquerading as a friend of the claimant and which was ‘merciless in its dissection of intimate details of its subject’s personal life’ (in the 1940 case of Sidis v F-R Publishing Corporation). They also gave no credence to the privacy claim of a Hasidic Jew of the Klausenberg sect whose religion prohibited the use of ‘graven images’ after he was secretly photographed by a street photographer hiding behind a scaffolding in Times Square New York with the photograph later exhibited and sold as an artwork (in the 2007 case of Nussenzweig v diCorcia). And they had no sympathy for the privacy claim of a Berkeley student Cynthia Moreno who having posted a critical comment about life in her former home town on her ‘Cynthia’ MySpace page and taken them down six days later found her former headmaster had arranged its publication in the local newspaper with her full name attached (in the 2009 case of Moreno v Hanford Sentinel, Inc). A subsequent claim for intentional infliction of emotional distress also failed notwithstanding that after the forced publicity she suffered threats and her family was forced to close its business and leave town.

The American media lawyer David Anderson once wrote that the fact that Americans (in general) do not value privacy highly and rather want to know everything about their neighbours goes some way to explain what he called ‘the failure of American privacy law’ (in Markesinis (ed), Protecting Privacy, 1999). If there is an Australian culture of privacy I would say it is more sympathetic to individual claims of privacy as a counterweight to free speech, in keeping with nineteenth century Millian ideas of individual liberty and utilitarian balances which are traditionally embedded in our common law. Perhaps we are changing in our expectations of privacy, but for my part the American approach is not a good model for where we might want to go with privacy protection. If that is where a statutory cause of action would take us, I would rather stick with the incrementally-developing common law.

Megan Richardson is a professor at the Melbourne Law School

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The UK Government on its Digital Opportunity

August 26, 2011

By Sarah Lux 

Earlier this year, the Fortnightly Review reported on the Hargreaves Review and its recommendations for the reform of UK intellectual property law. The UK Government has now released its official response, announcing that it accepts all of the Review’s recommendations and aims to implement measures by the end of this Parliament to ‘realise the Review’s vision and deliver real value to the UK economy, and to the creators and users of Intellectual Property’.

Importance of Evidence

The Review emphasised the need for IP policy to be grounded in clear economic evidence of the impact of regulatory mechanisms on competition and innovation. Professor Hargreaves identified two main areas of concern: the lack of high-quality evidence to support some intellectual property measures and an overabundance of lobbying by private interest groups.

The Response begins with a set of promises geared towards ensuring that UK IP policy is informed by better evidence. In relation to the first concern, the Response notes that the Government has ‘begun an ambitious programme of economic research with partners’, referring readers to an outline of its proposed research. The outline includes plans to:

  • assess possible economic effects of congestion in the trade mark register;
  • study the economic value of public domain works;
  • develop an approach for measuring IP enforcement costs against the effects on rights owners, consumers and the wider economy;
  • link all IP rights to business performance measures;
  • assess the economic cost of invalid patents;
  • assess the volume of orphan works and their impact on creators and users; and
  • develop a methodology for research into economic and social impacts of copyright exceptions.

In relation to the second concern, the Response states that the Government will give limited weight in IP policy-making to evidence that is insufficiently open and transparent, and will make it clear when it is doing so.

However, the Response also states that perfect evidence is an ideal, and that in making IP policy it is sometimes necessary to ‘guess and get on with it’. Accordingly, while the Government will aim to be guided by ‘emerging evidence’, it will continue to prioritise ‘rapid progress’ towards an improved IP system.

Digital Copyright Exchange

The response to Professor Hargreaves’ proposed Digital Copyright Exchange (DCE) is that a DCE ‘has the potential to offer a more efficient marketplace for owners and purchasers of rights’ and that it could contribute up to £2.2 billion per year to the UK economy by 2020. The Government will therefore commission a ‘champion’ of the DCE to undertake preliminary steps towards its creation.  The DCE champion will report back on progress at the end of 2011.

However, the Response implies that the Government will give less weight to the DCE than was envisaged by Professor Hargreaves. Hargreaves recommended that a work which cannot be found after a diligent search of the DCE should be regarded as an orphan work and automatically licensed for use. The Government, on the other hand, regards DCE searches as only ‘a valuable first step’ in searching for the owner of a work, and notes the need for other diligent searches before a work can properly be treated as an orphan. The Government takes the view that compulsory participation in the DCE would be contrary to the Berne Convention.

Orphan Works

The Government intends to make proposals at the end of the year for an orphan works scheme incorporating the safeguards discussed above.

Copyright Exceptions

The Response agrees that greater exceptions to copyright are required in theUK. The Government intends to make proposals at the end of the year for ‘a substantial opening up of theUK’s copyright exceptions regime’.  This will include proposals for:

  • a limited private copying exception;
  • a widened non-commercial research exception (which should cover text and data-mining to the extent permissible under EU law);
  • a widened library archiving exception; and
  • a new exception for parody.

The Response adds that there is a need for wider exceptions at the EU level, since theUK’s scope for action on exceptions is limited. The Government will therefore ‘aim to secure further flexibilities’ at EU level.

Enforcement

Among other measures to improve enforcement, the Government intends to introduce a small claims track in the Patents County Court for cases with £5,000 or less at issue, for use in copyright, design and possibly trade mark cases, to increase access to enforcement by small and medium enterprises.

Patents, Designs and Trade Marks

These areas of intellectual property law received little focus in the Review, which dealt mainly with theUKcopyright regime. However, the Review did make some recommendations on patents and designs.

On patents, the Government undertakes to:

  • resist extensions of patents into sectors which are currently excluded, in the absence of clear evidence that this is necessary;
  • provide for work-sharing with other patent offices in order to address backlogs; and
  • investigate the scale and prevalence of issues with patent thickets as well as potential solutions.

On designs, the Response notes that the IPO has commissioned research on the relative levels of design registration in theUKcompared toFranceandGermanyand on whether theUK’s lower level of registration has impacts on the competitiveness of theUK. It also noted that designs might be included in the DCE or its equivalent.

International Policy and Crime Strategy

Alongside the Response, the Government has released The UK’s International Strategy for Intellectual Property, which outlines the role the UK envisages for itself in working towards an efficient, well-functioning international IP system, and The UK IP Crime Strategy 2011, which discusses the ways in which the UK will continue to enforce IP law domestically.

Conclusion

The Government’s response to the Hargreaves Review was one of resounding acceptance, at least at the level of principle. Despite the long road towards implementation that no doubt lies ahead of these Recommendations, the Government’s positive response increases the likelihood that the principles underpinning the Review, and its key findings, will be considered closely in the upcoming review of Australian copyright.

Sarah Lux is an intellectual property lawyer at Allens Arthur Robinson and an Adjunct Lecturer at the University of New South Wales.

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Facebook contempt of court derails UK drug case

June 30, 2011

By Dr Melissa de Zwart

A major drug trial had to be abandoned and a juror and an (acquitted) defendant found guilty of contempt of court in the UK High Court, following contact between the juror and defendant on Facebook. This was the first prosecution for internet related contempt in the UK. The juror, Joanna Fraill, a 40 year old mother of three, created a Facebook profile called ‘Jo Smilie’, which clearly showed her image. She then used that profile to make contact with the defendant in the drug trial, Jamie Sewart, (34) who had been acquitted of conspiracy charges that day. The contact was made while the jury was still deliberating on other charges.

The complex multi-million pound trial, being heard in Manchester, had involved multiple defendants and charges and was one of a series of four trials. The high profile contempt proceedings came at a time of increased attention by the judiciary in the UK (and Australia) to issues related to jury members accessing the internet for information and attracted the personal involvement of the UK Attorney-General, Dominic Grieve. The case illustrates not only the allure of using the internet for research, but in particular the deceptive sense of privacy and intimacy created by social networking sites, such as Facebook.

Transcript evidence

A transcript of the Facebook chat, which took place in August 2010, has been made available by The Guardian. That transcript shows that Sewart clearly knew that ‘Smilie’ was a juror and asked her: ‘what’s happening with the other charge??’. ‘Smilie’ had asked her to clarify the question, but then went on to post a little later ‘don’t worry about that chge no way it can stay hung for me lol th’. Smilie was also clearly aware of the risk she was running, posting: ‘cant get anywaone to go either no one budging pleeeeeese don’t say anything cause jamie they could call mmiss trial and I will get 4cked too’.  Sewart reassures her: ‘I know I have deleted all the messages I wudnt do that to u don’t worry xx’. The pair also discuss nods, blinks and smiles that Smilie had been sending to Sewart in the courtroom (although Sewart seems to have been unaware that they were meant for her). Sewart later says that they should keep in touch and that she would get Smilie ‘a nice pressie’ if she got anything ‘out of um’, presumably the ‘compo’ she said she would be applying for. At the heart of the exchange is the sense that Smilie wants to show her empathy with Sewart and to explain that she had felt that she had shared the experience with Sewart, noting that she had laughed and cried along with her during the trial.

Despite her assurances to Smilie, Sewart told her lawyer about the Facebook exchange the next day. This resulted in the seizure of her computer and the bringing of the contempt charges. The jury was discharged and the case collapsed.

Both Fraill and Sewart were found guilty of contempt of court in June 2011. Fraill admitted that she had contacted Sewart, claiming that she had been motivated by her joy that Sewart had been acquitted of the charge of conspiracy to supply drugs, after being on remand for fourteen months and separated from her young child, and because she had felt that there were ‘considerable parallels’ between the womens’ lives which made her feel empathetic to Sewart’s plight. Fraill also admitted to having conducted internet searches on Gary Knox, Sewart’s partner and co-defendant in the trial.

Gary Knox, a defendant who was convicted in the original drugs trial and jailed for six years on charges related to paying a police officer to disclose information relating to drug dealer has also applied to have his conviction overturned on the basis of alleged jury misconduct.

The case was heard by the Lord Chief Justice, Lord Judge, Ouseley and Holyrode JJ.

Sentence and observations

Fraill was sentenced to eight months in jail for the contempt. Seward was sentenced to two months, suspended for a period of two years. The contempt action was conducted personally by the Solicitor- General, Edward Garnier QC, who stated that the case was necessary to protect jury integrity. After the trial, Garnier stated that: ‘Jurors should take careful note and know that the law officers will prosecute those who commit contempt.’ He continued:

‘The jury system is a cornerstone of our society and confidence in this vital part of our criminal justice system will crumble if jurors do not take their responsibilities seriously.’

The written ruling of Lord Judge stated: ‘Her [Fraill’s] conduct in visiting the internet repeatedly was directly contrary to her oath as a juror. And her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial.’ The messages exchanged between Fraill and Sewart ‘went much further than the expression of a compassionate concern’. The ruling warned that any similar action by a juror would result in a custodial sentence, such punishments being necessary to maintain faith in the integrity of the jury system. [sky.news.com.au]

In November 2010, Lord Judge had presented a paper to the Judicial Studies Board warning of the prospect of jail sentences for jurors engaging in internet research. He highlighted the risks posed to the jury system by jurors using the internet to search for further information on matters related to the trial. He stated: ‘I do believe that if it is not addressed, the misuse of the internet represents a threat to the jury system, which depends, and rightly depends, on evidence provided in court which the defendant can hear and if necessary challenge. He is not to be convicted on the basis of material which from his point of view is secret material – not only secret material, which is bad enough, but material which may be inaccurate and could also be false.’

Lord Judge concluded: ‘if the jury system is to survive as the system for a fair trial in which we all believe and support, the misuse of the internet by jurors must stop. And I think we must spell this out to them …  yet more clearly. It must be provided in the information received by every potential juror. It must be reflected in the video which jurors see before they start a trial. Judges must continue to direct juries in unequivocal terms from the very outset of the trial. And I should like the notice in jury rooms which identifies potential contempt of court arising from discussions outside the jury room of their debates, to be extended to any form of reference to the internet.’

Facebook ‘friends’

One of the interesting issues raised by this trial, is not so much that Fraill was tempted to discuss the case on Facebook, but rather what Jenny McCartney writing in The Telegraph described as the ‘illusion of intimacy’ displayed in the transcript of the chat. Fraill clearly wanted to be identified by Seward as a friend and ally. Although she had used the internet to search for information on Knox, it appears that she was mainly interested in getting some acknowledgment from Seward that they shared a special bond. Although she had been signalling to Seward in court, it was by no means clear that the signals had been received by Seward. In the same way that for example, fans of a popular musician or actor can gain a sense of contact through receiving a message via Facebook, Fraill sought some affirmation from Seward. This sort of contact would not have been possible in pre-Facebook modes of contact and represents a unique aspect of social network communication. This is an extension of the general problem of jurors being tempted to conduct their online ‘research’ during trials. It is now necessary for jury instructions to specifically prohibit using any internet enabled device to conduct research or to communicate with anyone regarding the case. Whilst this may appear to be common sense, experience suggests that we are still learning how to use Facebook and social networking sites appropriately.

Dr Melissa de Zwart is an Associate Professor in Law at the University of Adeliade.

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WikiLeaks is a force for good?

June 30, 2011

I was recently invited to attend the Intelligence Squared debate asking whether ‘WikiLeaks was a force for good?’ and contribute a small article about the debate for the organiser’s newsletter (the St James Ethics Centre). The article was to be a legal companion to the article contemplating the ethical aspects of WikiLeaks by Dr Simon Longstaff, Executive Director of the St James Ethics Centre and Chair of the Intelligence Squared Australia debates. At the debate, this polemical issue provoked a tempestuous dispute by extremely gifted speakers including: Dr Suelette Dreyfus (author of ‘Underground’), Kristinn Hrafnsson (current spokesman for WikiLeaks), and Professor Stuart Rees (Emeritus Professor at Sydney University and Director of Sydney Peace Foundation) for the positive; and Gareth Evans (former Foreign Minister), Tom Switzer (political writer, editor, adviser and lecturer), and Dr Michael Fullilove (Director of the Global Issues Program at the Lowy Institute) for the negative. Interestingly, the poll results from before and after the debate suggest that while those believing WikiLeaks is a force for good remained undeterred, those undecided before the debate were markedly influenced against the proposition by the end. The precise results, as well as the audio of the debate are available from the IQ2 website.  – Jake Goldenfein

 

WikiLeaks is a Force for Good

By Dr Simon Longstaff

Speaking at the 25th Asia Pacific Roundtable in Kuala Lumpur in June 2011 Rowan Callick (The Australian) quoted Australia’s Ambassador to the United States, Kim Beazley who stated “[WikiLeaks is] like American foreign policy being neutron bombed” – the implication being that while the infrastructure of the US State Department survives, the people within the edifice have been badly damaged. Beazley’s analogy is, at the very least, striking. It is also at the more extreme end of the rhetorical scale employed by WikiLeaks’ critics. The core of Kim Beazley’s argument, however, is shared by many members of the diplomatic community. Their chief complaint is that WikiLeaks has undermined a fundamental precursor for the conduct of diplomacy – the maintenance of confidentiality of communications. The argument goes that, without a guarantee of confidentiality, the otherwise essential exchange of information will be curtailed for fear of exposure. Given that effective diplomacy can prevent or resolve conflicts capable of destroying the lives of innocent people, it is further posited that WikiLeaks is a significant source of harm – and not just a minor inconvenience.

It should be noted that this argument does not rely on the claim that WikiLeaks’ release of cables caused serious harm to those named in the published cables. Appearing before Congress, US Secretary of Defense. Robert Gates, testified that no damage had been done to active operations and that no American life had been put at risk by the activities of WikiLeaks. The fate of those who provided information to US officials, however, may not have been so benign – especially if operating under oppressive regimes in countries where even a modest degree of candour can have dire consequences for the individuals concerned.

At face value the criticism mounted by Beazley and those of like mind would seem to have merit. After all, who would deny that effective diplomacy is an important public good. It is less clear, however, that WikiLeaks acted in a manner to undermine the preconditions for diplomacy. For example, although diplomats require some matters to be kept secret, it does not follow that all matters they claim require secrecy should be accorded this same condition. The scope of the Official Secrets Act in Britain was once so expansive that it included the House of Commons’ dining room menu. No reasonable person would assume secrecy requirements for such details. In fact, much included in the trove of diplomatic cables released by WikiLeaks was mundane. Indeed, the level of American security accorded to the cables was relatively low – with access granted to several million people connected to the Secret Internet Protocol Router Network SIPRNet used to share information in the ‘war on terror’. It is unlikely the United States government would have granted such extensive access if it had considered the cables contained highly sensitive information.

The other point worth noting about the contentious releases is that WikiLeaks subjected itself to external review by agreeing that the editors of mainstream news outlets should vet the material in order to remove any information judged to be genuinely sensitive, This is an important point. In the case of the US cables, at least, WikiLeaks was prepared to accept the judgement of editors who society routinely trusts to be prudent and responsible when determining what should or should not be published. The editors involved in handling the sensitive diplomatic material have been explicit about their determination to exclude material that would have caused risk, rather than mere embarrassment, to others.

As most commentators have noted, the debate about WikiLeaks is about much more than the particular case of how the US diplomatic cables were handled. The larger question concerns the extent to which society should have access to public information that is relevant to its interests. There is a significant difference, however, between what is in the public interest and what the public happens to be interested in – a distinction not always applied by the media. Governments often claim to be guardians of the public interest. They claim a corresponding right to decide what the public should know – and when we should know it. It is also clear, however, that governments will often make decisions in line with personal or political interests – interests that are not always aligned with those of their citizens. Add to this the kind of caution that would include a dining room menu under an official secrets act and it soon becomes evident that it would be unwise to rely exclusively on the judgement of governments.

The vast majority of people recognise the importance of maintaining some measure of secrecy in their own lives. They also know governments must keep some matters secret, for example for reasons of national security. What WikiLeaks has prompted is a public discussion about where the balance should lie. The June 2011 Intelligence Squared debate which is now available at iq2oz.com pondered the proposition WikiLeaks is a force for good. Speakers for: Dr Suelette Dreyfus, Kristinn Hrafnsson, current spokesperson for WikiLeaks, Professor Stuart Rees. Speakers against: Gareth Evans, Dr Michael Fullilove, Tom Switzer.

Dr Simon Longstaff is Executive Director of St James Ethics Centre and Chair of Intelligence Squared Australia debates.

This article will also be published in the St James Ethics Centre Newsletter and at thepunch.com

 

WikiLeaks: legal status and political choices

By Jake Goldenfein

A survey of whether or not WikiLeaks is a force for good does not necessarily consider the legality of its actions. At this stage there is only indirect legal action against WikiLeaks. For example, many consider the accusations against Assange to be politically directed at the WikiLeaks organisation, and the severe incarceration of Bradley Manning, the source of a great deal of WikiLeaks material, surely has a deterrent motivation targeting potential leakers. Beyond that, neither WikiLeaks nor its activities are outlawed. A Grand Jury in the US is attempting to assemble a case against WikiLeaks for crimes under the Espionage Act, Computer Fraud and Abuse Act, and for conspiracy, however most commentators consider constitutional free speech protections to be a significant impediment to prosecution. But WikiLeaks legal status also reflects its ‘organisational status.’ That is to say, whether WikiLeaks is considered a journalistic organisation, a publishing organisation, or simply a source, affects which laws are relevant. The laws applicable to each category vary, and despite often being treated by mainstream media as simply a source of leaks, WikiLeaks is not being prosecuted as such, meaning it need only comply with laws relevant for journalists or publishers. American precedent such as the famous Pentagon Papers case suggests that the messy balance between the administration’s need for secrecy and the public’s right and need to know should enable the administration to function, subject to occasional disclosures to keep it honest. ‘The rare exceptions would require a combination of high likelihood, magnitude, and immediacy of harm to justify suppression,’ meaning there is a very high threshold to WikiLeaks prosecution under that doctrine.

It is difficult to assess whether WikiLeaks legal situation would be different if pursued under Australian law considering we have no express constitutional right to free speech (though we do have an implied right of political communication), and our whistle-blowing laws do not apply to the media at large. Commonwealth v John Fairfax and Sons (1980) 147 CLR 39 (‘Defence Papers Case’) and Attorney-General v Heinemann Publishers (1987) 8 NSWLR 341; (1988) 165 CLR 30 (‘Spycatcher’) are potentially relevant Australian cases indicating that under our law WikiLeaks may be exposed to a breach of confidence action, and the Fairfax case points out that copyright may also be relied upon where documents are copied. But prospects of success are not guaranteed and there are some important limitations and qualifications on liability (for instance the defence of fair dealing for purposes of news reporting vis-à-vis copyright, the need to demonstrate Australian public interests vis-à-vis breach of confidence). Of course assessments here will be very fact specific and we do not necessarily know all the relevant facts at this stage. Katy Barnett wrote a nice piece on ‘Spycatcher and Wikileaks’ in the January issue of the Fortnightly Review.

Despite its relatively stable legal status, WikiLeaks has certainly still come under attack from institutional actors. And those attacks, generally effected through privately owned intermediaries, expose some of the more concerning aspects of the new media environment in relation to freedom of the press. ‘Extra-legal’ actions (including denial of service cyber-attacks) by companies that control crucial aspects of cyber-infrastructure like Visa, Mastercard, Paypal, EveryDNS, and Amazon, betray a private-public partnership with dangerous censorship implications. Scholars like Yochai Benkler suggest these censorship actions would have been practically impossible under legal and constitutional frameworks.

After the original reaction to the ‘CableGate’ leaks, the rhetorical framing of WikiLeaks shifted away from a major threat to the peaceful world order towards a more realistic suggestion that it undermines the checks, balances and accountability established within traditional media organisations. Indeed, no significant harm (apart from embarrassment) to any diplomatic or military institution has yet been claimed as a consequence of the leaks, suggesting the established media and state institutions reacted primarily from a motivation of anxiety than actual danger. However, that anxiety could be valid, as WikiLeaks may have serious implications for traditional media models as well has profound consequences for nation states and democracy. For example, Professor John Keane from University of Sydney places WikiLeaks at the vanguard of the emerging ‘monitory democracy’ in which democracy has shifted away from simple ‘parliamentary democracy’ towards a form of democracy that includes the permanent scrutiny of power wherever it is exercised.

Therefore, if we take the starting position that WikiLeaks’ publication of materials (often in conjunction with mainstream media) is not clearly illegal (although not clearly legal either), and that the releases seem to have caused no real damage to date at least, then deciding whether or not WikiLeaks is a force for good requires the personal determination of whether we approve of WikiLeaks’ fundament and mission, an inherently political decision. On the whole do we consider the outcomes of WikiLeaks’ actions beneficial?

WikiLeaks’ neutron bomb effect described above by Dr Longstaff, may indeed curtail some exchange of information, however that itself is not determinative of whether the outcomes of WikiLeaks actions are positive or negative. Without doubt governments need secrecy for certain actions (for example effective diplomatic practice), however they also need sufficient trust from the citizenry to maintain that secrecy. Raimond Gaita recently said in a lecture at Melbourne Law School that the current political situation (for example the spin and misinformation) has led to an absence of the conditions of sober judgement and ultimately an incapacity for people to consent to their states’ actions. In that sense WikiLeaks is facilitating the information necessary for consensual governance. Another fundamental effect was described by Glenn Greenwald, who recently wrote that the republican ideal requires that governments are transparent and citizens are private, yet the past decade has seen a wholesale reversal of that ideal. WikiLeaks therefore stands as a subversion of that reversal, a goal that goes beyond embarrassing diplomats or bringing political pressure to end a senseless war. Finally, commentator Guy Rundel has argued WikiLeaks gives whistleblowers a new choice, a chance to avoid the decision between life and truth, with the outcome that pursuing honesty can result in a flourishing of life rather than a suicide mission. Perhaps these outcomes are worth diplomats being slightly more cautious in how they communicate, or perhaps not.

Jake Goldenfein is a PhD student at the Melbourne Law School

This article will also be published in the St James Ethics Centre Newsletter.

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A reply to the sentiment that copyright infringement not resulting in lost sales is benign

June 16, 2011

By Assoc. Prof. David Brennan

A view is held (in both expert and non-expert circles) that unless an infringement of copyright causes proven lost sales, that infringement should not be actionable. Under the logic of this view, to award damages for infringements that do not cause proven lost sales would be vindicating intellectual property rights without triggering incentive effects.

In relation to the damages award in the now famous Larrikin v EMI litigation (comprising a notional usage price of 5% of APRA׀AMCOS royalties paid to the infringers) two of our economists Beth Webster and Paul Jensen have supplied this critique of the law – emphasis in the original:

The sales of ‘Kookaburra’ were not affected in any way shape or form by the success of ‘Down Under’.  Quite simply, Larrikin should not be due any damages at all.

It is worthwhile to think more about (in law and economics) the creation of property rights – including those rights’ remedial scope – for copyright subject matter. A fine vehicle to do this is infringing file-sharing.

Research undertaken at the University of Ballarat in April 2010 reveals something of the global extent of infringing file-sharing. The University’s Internet Commerce Security Laboratory (ICSL) – which is funded by the State Government of Victoria, IBM, Westpac, the Australian Federal Police and the University – was commissioned by Village Roadshow to measure the volume and nature of BitTorrent file-sharing global traffic. It estimated that 97.9% of files made available encoding non-pornographic content were clearly not authorised by the copyright owner. Under the BitTorrent system the term ‘seeders’ refers to people who have completed their download and then make the file available for others to download. That is to say, a seeder is a person who is making that content available online to the public. The ICSL produced a list of what was estimated to be the top 100 seeded files as at April 2010. The top 10 in that list were:

1. The Incredible Hulk[2008]DvDrip-aXXo97065494792.4447: 1,112,628

2. Indiana Jones And The Kingdom Of The Crystal Skull[2008]-aXXo: 1,029,695

3. College[2008]DvDrip-aXXo339166021846.017: 509,576

4. Sherlock Holmes (2009) DVDSCR XviD-MAX: 479,655

5. Avatar (2009) PROPER TS XviD-MAX889790305026.795: 332,665

6. Meet Dave[2008]DvDrip-aXXo: 311,894

7. Lady GaGa – The Fame Monster 2CDRip 2009 [Cov+2CD][Bubanee]: 308,117

8. The Andromeda Strain[2008]DvDrip-aXXo: 284,221

9. Shutter Island (2010) R5 DVDRip XviD-MAX851029283088.936: 282,628

10. 2012 (2009) R5 DVDRip XviD-MAX883775626338.402: 277,043

With this list it should be pointed out that a title like Avatar reappeared twice again in the top 100 list under different file names – i.e. Avatar 2009 DVDScr H264 AAC-SecretMyth (Kingdom-Release) 94,781 seeders and Avatar TS XviD-IMAGiNE(No Rars) 82,977 seeders.

It is commonly considered that unless an infringing file-sharer, but for infringing, would have paid for the relevant content then there is no harm to the copyright owner arising from the infringement. Consider these three published readers’ comments to Asher Moses’s essay-style article ‘Piracy – are we being conned?’ (Fairfax Media, 22 March 2011)

  • Why would they assume that an unpaid download is a lost sale? Kale – Sydney
  • The figures are obviously predicated on the presumption that each illegal download would convert into a legitimate purchase, which is a palpably fatuous assumption to make. The ghost of common sense - My bedroom
  • So are they counting every movie i have downlaoded then as lost revenue? cos i have a surpirse for you, you never were gong to get the money in the first place! [sic] Danny – Melbourne

The commonality of this sentiment is so pervasive that a survey-based analysis of direct loss to the film industry conducted in Australia by IPSOS Media CT and Oxford Economics for the Australian Federation Against Copyright Theft (AFACT) made explicit allowance for it. Deducted from ranks of loss-causing Australian infringers were those who would never have paid to watch the film. That is someone like Danny above. Danny might have unlawfully downloaded Avatar using BitTorrent, but never would have paid to obtain a copy. The AFACT-commissioned survey estimated that 23% of Australian infringers were in Danny’s boat, and so a 23% deduction was made in arriving at the final figure of $575m direct loss to the film industry for the 12 months Nov 2009-Sept 2010.

Is it correct, as our economists Beth and Paul say, that infringement not causing proven lost sales should yield zero damages? Or is it correct, as the Fairfax readers imply, that an infringing download not substituting for an actual purchase should be removed in the calculation of owner harm? And is it therefore correct to make that 23% deduction?  Or, to put it another way, is infringement not resulting in a proven material loss benign?

In economic analysis of copyright law as it applies to (say) the film industry, copyright is justifiable to the extent that it provides an effective promise to film producers and creators that if investment and risk is undertaken to make a film, some of the value that film generates is capable of market appropriation through the conferral of property rights. Avatar is a good case-in-point.  Would it have been created without the promise of copyright? It is difficult to imagine this type of content being produced through non-market means such as philanthropy or public funding. Market demand stimulates such content’s creation. In copyright, property rights in creative expression are deployed as an instrumental device to permit that market demand to induce productive endeavour. This is the incentive effect of intellectual property. It does not mean that those property rights per se generate economic value – the film could be an unmitigated box-office flop. Rather, the rights simply provide a way for a film copyright owner to capture some of the market demand for its film.

Given that copyright in economic theory is a promise of appropriability what, in private law, does that promise mean by taking the form of a property right?  Property as an owner’s right to exclude forges a special norm which governs relations between the owner of the property and users of the property. When relations are governed by a property norm violation by a user means that the owner receives less than the owner deserves, and that the user obtains more than the user deserves. Restitution scholarship regards this as an ‘expense’ to the owner mirroring a ‘gain’ to the user. The expense and the gain are de jure rather than de facto concepts. This restitutionary idea has been applied in intellectual property cases since as long ago as the 1867 patents decision of Penn v Jack where Page Wood VC assessed damages by asking: ‘What would have been the condition of the Plaintiff if the Defendants had acted properly, instead of acting improperly. That condition, if it can be ascertained, will, I apprehend, be the proper measure.’ Here, ‘acted properly’ meant to have paid a reasonable usage price for the use of the intellectual property.

Subsequent UK, US and Australian authority has assessed the lower-end quantum of monetary relief in copyright and patent cases to be the reasonable price for the use of the IP regardless of whether the particular defendant user would have agreed to pay. Indeed this approach is seen in the Larrikin v EMI case itself, where evidence was before the court that a lead member of Men at Work would have resisted paying anything for use of the Kookaburra copyright. But why should at least usage price damages be paid in the Larrikin v EMI litigation, and indeed by people such as Danny in the unlikely event that they are sued for downloading Avatar? For instrumental reasons society has promised the conferral of copyright property. That promise is one of appropriability which entails a particular norm governing relations between owners and users. Failure to at least award usage price damages (or recognise a legal entitlement to such a usage price) represents breach of that promise. It does so by creating the perverse situation of rewarding users who infringe rather than act lawfully. Moreover, why should anyone pay for the enjoyment of Avatar if the law accepts as benign the consumption of ‘you never were gong to get the money in the first place’ Danny?

Stripped away, the point made by the above economists and the Fairfax readers seems to resolve to a more fundamental matter of property delineation. The infringements of the 23% of users identified in the AFACT-commissioned survey should be removed from the copyright promise. That is, removed from the definition of property rights in copyright. Arguably, it presents us with this stunning new conception: copyright is the legal entitlement to exclude the whole world from the exercise of certain defined rights – except those people who would never have paid for the exercise of those rights.

David Brennan is an Associate Professor at the Melbourne Law School

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Twitter Undoes UK Super Injunctions

June 2, 2011

By Katy Barnett

The law is generally unsuccessful when its ability to prevent the flow of information is pushed to the limit. As I’ve described in an earlier post, the Spycatcher case is a primary example: the more the British government attempted to prevent Peter Wright from publishing his book on MI5, the more publicity they gave it. And the English government met very little sympathy from courts in other jurisdictions when it attempted to suppress Spycatcher in Australia, New Zealand and Hong Kong, even though those jurisdictions were former colonial outposts.

The latest iteration of this particular battle has occurred on Twitter in the UK. A user named @InjunctionSuper set up an account which made a number of allegations against a variety of celebrities. Among other allegations, a prominent footballer (later outed as Manchester United’s Ryan Giggs) was accused of having an affair with a reality television star (an injunction preventing publication of allegations had been awarded by Eady J in CTB v News Group Ltd [2011] EWHC 1232 in April); an actor was said to have used the services of a prostitute named Helen Wood; and it was alleged that Jeremy Clarkson had an injunction preventing the publication or mention of intimate photographs of himself with Jemima Khan.

All these people were said to have had “super injunctions” which prevent not only publication of the details of the allegations and the identity of those concerned, but even prevent people and media outlets from reporting on the existence of the injunction itself. Importantly, to breach the injunction, or to knowingly assist in or permit a breach of the injunction, constitutes contempt of court. People who breach such injunctions may be imprisoned, fined or have their assets seized. In the event, some of the celebrities in question did not have “super injunctions”, but merely anonymity injunctions (which prevent disclosure of confidential information and the identity of one or both of the parties, but do not prevent discussion of their existence).

Ironically, the story broke when Khan responded to the tweet, vehemently denying it:

Only minutes after the claims were published on Sunday, 37-year-old Mrs Khan denied having an affair with Clarkson, saying the allegation was ‘untrue and upsetting’.

‘OMG – Rumour that I have a super injunction preventing publication of “intimate” photos of me and Jeremy Clarkson. NOT TRUE!’ she tweeted.

A minute later she added: ‘I have no super injunction and I had dinner with Jeremy and his wife last night. Twitter, Stop!’

She added: ‘The proof that I haven’t got a super injunction is that the papers have printed my name (and no one else’s – for fear of being sued).’

The socialite received supportive text messages from both Clarkson and his wife Francie after the allegations emerged.

Clarkson used humour to dismiss the claims. In a text to Mrs Khan he said: ‘It’s odd. I’m sure I’d remember if any photos of us existed.’

Khan is correct: the media showed no compunction in mentioning her name, whereas it has been cautious about mentioning other people.

Of course, “super injunctions” and anonymised injunctions are very expensive to obtain, and as media lawyer Mark Stephens commented to The Independent: ‘It’s the beginning of the end. Even a rather thick footballer is going to think twice before handing £100,000 to a greedy lawyer if the greedy lawyer can’t guarantee that it will actually stay secret.” The Daily Mail reported that Giggs had spent £150,000 on lawyers to keep the details of his affair secret, but paradoxically, the greater his efforts to keep the affair secret, the more publicity it received (a clear instance of the ‘Streisand effect‘ at work yet again). As publicist Max Clifford noted in the Mail article linked above, Giggs might have been better off not to resort to the law at all. He is now alleged to have started proceedings against Twitter and “persons unknown”, using the initials ‘CTB’. This rather nice graph at the Guardian shows how mentions of Giggs’ name spiked on Twitter on 20 May once his proceedings against Twitter were announced:

Could those who mention Giggs’ name in the UK be the subject of legal proceedings? It is estimated that about 30,000 Twitter users have breached injunctions by tweeting the identities of various people covered by those injunctions. It has also been reported that the Attorney-General is considering whether to prosecute a journalist for breaching a privacy order involving a different footballer. Meanwhile, a Scots newspaper published details about Giggs, arguing that English law did not extend to Scotland, although — despite the recent success of the SNP in elections — this would seem doubtful.

With impeccable timing, the Master of the Rolls of the UK Court of Appeal, recently released report about “super injunctions”. In summary, the Committee concluded:

  • The principle of open justice is a fundamental constitutional principle which should only be derogated from where “strictly necessary in order to secure the proper administration of justice”;
  • There is a difference between super injunctions (which restrain a person from publishing confidential and private information about the claimant where the very existence of the injunction may not be disclosed) and anonymised injunctions (which merely restrain a person from publishing confidential and private information about the claimant where the names of either or both of the parties to the proceedings are not stated);
  • Since Terry v Persons Unknown [2010] 1 FCR 659, as far as the Committee is aware, only two known super-injunctions have been granted to protect information said to be private or confidential;
  • ‘As they incorporate derogations from the principle of open justice, super-injunctions and anonymised injunctions can only be granted when they are strictly necessary. They cannot be granted so as to become in practice permanent. Where super-injunctions and anonymised injunctions are granted they should be kept under review by the court’ and they should have clear return dates (pursuant to Terry);
  • In the recent past, super-injunctions and anonymised injunctions have also sometimes been more widely used than is strictly necessary by UK courts; and
  • A new procedure should be developed which allows the media to be informed of such injunctions in advance, although there may be times when this is not appropriate.

Interestingly, the Committee did not consider new media or the difficulties associated with controlling it in any detail. One of the key questions is whether such orders can effectively be enforced against entities such as Google and Twitter. Giggs’ case may represent a testing ground in this regard. Another difficulty is that many users are anonymous, making it difficult to find out who they are. Further, it is difficult to restrain publications outside the jurisdiction (as the Spycatcher cases showed in an earlier era).

As was noted in The Independent, the anonymised injunctions which Twitter users breached are only those involving the alleged sexual indiscretions of celebrities. Recently, UK Twitter users have been banned from identifying a brain-damaged woman whose mother wishes to remove life-support, but no one has breached this order. Since 2000, with the enactment of Article 8 of the ECHR (protecting privacy) into UK law, there has been an expanding use of breach of confidence in the UK to restrain breaches of privacy (see Campbell v Mirror Groups Newspapers Ltd and Douglas v Hello! (No. 3)). Perhaps the public are reacting by reasserting the sentiments of Lord Denning in Woodward v Hutchins, a case dealing with unsavoury allegations in the Daily Mirror newspaper about the private life of Tom Jones and other pop stars. Denning LJ said:

If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected … In this case the balance comes down in favour of the truth being told, even if it should involve some breach of confidential information. As there should be ‘truth in advertising’, so there should be truth in publicity. The public should not be misled.

Celebrities seek publicity in the press in exchange for public adulation, but audiences often want a more “true” picture than the highly managed images the celebrities want to project. Perhaps this is why Twitterers are particularly wont to breach injunctions relating to celebrity privacy. Perhaps they dislike hypocrisy (self-presented “family man” turns out to be a serial philanderer etc). Or perhaps it’s simply the Streisand effect writ large – the very fact that the information is prohibited is what makes it attractive and interesting to people.

Ken Parish at Club Troppo has a good summary of the legal and practical issues involved with these kind of cases:

My own view is that there is a distinct difference between the “public interest and stuff that is interesting to the public” (as Richard Ackland succinctly phrases it) from a privacy viewpoint, so that privacy should be protected by the law where the public’s interest in knowing stuff is overwhelmingly prurient.  Where that is the case I don’t see that the public interest in freedom of speech has much force, irrespective of the degree of fame of the subject of salacious information.  The fact that a person is famous does not mean they forfeit all moral claim to personal privacy in my view.

On the other hand, the “outing” of Ryan Giggs suggests that, whatever we might think as individuals about whether a right to privacy should exist, the borderless and almost universal nature of the Internet means that a court in any given country is unlikely to be able effectively or for very long to prevent disclosure of information about the identity of a person about whom salacious rumours are circulating.  In one sense I suppose that’s not very different from the social situation in western societies before the urbanisation of the 18th and 19th centuries.  Most people lived in villages and knew everyone else’s business anyway.  Rights to privacy in that sense are just an artefact of a short period of history when the practical anonymity conferred by large urban agglomerations of people had not yet been rendered ineffective by Wikileaks, Twitter, blogs and Facebook and the underlying Internet architecture that makes it almost impossible for the courts of a single country to keep information confidential.

Like Ken, I feel that we do not have a right to prurient information about celebrities: but whether the law can actually control the dissemination of such information in the present climate is quite another question.

Katy Barnett is a Lecturer at the University of Melbourne Law School

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A few thoughts on iiNet FFC decision

March 17, 2011

On 24 February the iiNet decision generated significant buzz in the media, academy and anyone with an interest in cyber-regulation or copyright. Kimberlee Weatherall first posted the article below on her blog LawFont, and we are reposting it here to provide our audience with her expert exposition. As mentioned in Kimberlee’s article, Fortnightly Review author David Brennan also wrote a piece for The Age, and hopefully the conversation between these analyses will generate some excellent discussion and commentary within our community of readers and authors.

A few thoughts on iiNet FFC decision

By Kimberlee Weatherall

By now, all the copyright nerds in the world know the headlines: the Full Federal Court has handed down its decision in the iiNet case; that the appeal was dismissed in a 2:1 decision (Emmett and Nicholas JJ; Jagot J dissenting). Most people also will know that the reasoning is very, very different from the Trial Judge’s decision, and certainly contemplates, in a way that the Trial Judge didn’t, that in different factual circumstances an ISP could be liable for authorising infringement by its BitTorrenting users. The various major law firms have issued their summaries, I refer you there for an overview. Assoc Prof David Brennan from Melbourne Uni has expressed his succinct, and compelling view.

The decision is really long: it half looks like all three judges wrote as if theirs was to be the main decision (with others concurring or dissenting more briefly). A close reading reveals why. Although it is fair to say that the majority judges reach broadly the same conclusion on broadly similar grounds (namely, that the AFACT notices did not contain enough information to require action on the part of iiNet), they conceptualise the facts quite differently, and demonstrate important differences of approach. My early thoughts are below the fold. This one’s for people generally familiar with the case and Australian copyright law though – beginners need to start, at least, with the law firm case notes.

Conceptualising the facts

Emmett J’s judgment reads like a borderline one to me: it’s almost like he came within a hair trigger of finding authorisation. He emphasises iiNet’s ‘contumelious disregard’ for the rights of the copyright owners, suggests that iiNet ‘tacitly approved’ of the infringements, and highlights the facts that appear to have come quite close to constituting authorisation. Ultimately, Emmett J is not satisfied that sufficient information was provided by AFACT to trigger authorisation. Emmett J also seems concerned that iiNet ought not be required to bear the whole cost of any system.

Nicholas J seems to view iiNet’s behaviour as far less egregious: it is Nicholas J, for example, who emphasises that iiNet’s apparent ‘indifference’ could not simply be characterised as wrongful, based as it apparently was on a belief that iiNet was not legally obliged to act. One has the sense, however, that insofar as Nicholas J was concerned that iiNet not be held liable for taking a position on the law that was not entirely judicially unsupported, his Honour would be less sympathetic in a future case, where an ISP would no longer be able to take that attitude in light of the decisions in iiNet. It is Nicholas J who seems most concerned with the possibility that ISPs will be incentivized to suspend or terminate users all too readily to avoid future litigation.

Jagot J, the dissenting judge, roundly condemns iiNet’s attitude. Her Honour emphasises iiNet’s refusals to cooperate, in effect holding iiNet responsible for any results of its failure to cooperate – including the fact that it had insufficient information to be, perhaps, fully confident that infringement was occurring. ‘Be it on iiNet’s head’, as Jagot J would have it.

Authorisation: Reaffirming the existing case law

The three judges affirm a more traditional conception of authorisation in copyright than that we saw in the Trial Judgment. They confirm that Moorhouse’s phrase, stating that to authorise is to ‘sanction, countenance or approve’ infringement is to be read disjunctively – one is sufficient. The Judges also reject the apparent attempt by the Trial Judge to revive the Justice Jacob reasoning in Moorhouse from the first instance decision: rejecting the idea that there needed to be some ‘sense of official approval or favour’ in order to show authorisation.

On the meaning of authorisation, Emmett J’s judgment is the most wide-ranging, in that it adopts, perhaps affirms, much of the language from cases like Cooper in a series of phrases drawn from earlier cases. I really wish judges would not repeat a series of phrases about the law in this decontextualised way. It seems practically designed to give comfort to the prospective plaintiff in an authorisation case: you can always find a phrase that suits.

On the meaning of authorisation, I recommend the judgment of Justice Nicholas, which is I think, the easier judgment to read and understand, having ‘synthesised’ the precedent more.

‘Means of Infringement’
The three judges – implicitly or explicitly – reject Justice Cowdroy’s threshold test. Under Justice Cowdroy’s approach at trial, iiNet did not provide the ‘means of infringement, in the relevant sense used in Moorhouse, in that it did not extend an invitation to the iiNet users to use its facilities to do acts comprised in the copyright of the Copyright Owners’ and consequently did not authorise infringement. In other words, this question of whether the party provided the ‘means of infringement’ operates as a threshold test, without which authorisation will not be found.

Justice Emmett almost seems determined to politely pass over this approach by the Trial Judge like a polite host ignoring the uncouth table manners of an ill-assorted guest. Emmett J notes the reasoning of the Trial Judge, using the mild epithet of ‘unconventional’ to describe the structure of the reasons. But once Emmett J has described the primary judge’s approach, this phrase never appears again in the judgment. Both Justice Nicholas and Justice Jagot more explicitly reject the Trial Judge’s approach: Jagot J more fulsomely.

The crux of the case: knowledge
Both Emmett J and Nicholas J were dissatisfied with the information provided in AFACT’s notices: this finding lies at the heart of their rejection of AFACT’s case on authorisation. More or less, the notices provided by AFACT gave rise to ‘reason to suspect’ infringements on the part of iiNet’s users, but not knowledge of specific acts of infringement sufficient to warrant iiNet acting to suspend or terminate internet accounts.

Emmett J thought that AFACT’s notices would have to have included:

  1. Information in writing of particulars of specific primary acts of infringement of copyright of the Copyright Owners, by use of particular IP Addresses of iiNet customers; and
  2. Unequivocal and cogent evidence of the alleged primary acts of infringement by use of the iiNet service in question; at least information as to the way in which the material supporting the allegations was derived, that was adequate to enable iiNet to verify the accuracy of the allegations.

Justice Jagot takes a very different view here: stating that the AFACT notices ‘contained prima facie credible evidence of widespread and repeated infringements of the appellant’s copyright by iiNet customers and users’, rising above the level of ‘mere unsubstantiated or unreliable allegations’. What is more, if iiNet did not have sufficient information to judge the accuracy of the notices, that was iiNet’s own fault: having refused to engage with AFACT, it could not then plead its own ignorance.

Did iiNet have the ‘power to prevent’ the infringements?
All three judges consider that iiNet had the technical and contractual power to terminate or suspend its services to subscribers on the basis of copyright infringement; this was relevant, albeit not determinative (cf the Trial Judge who seemed to say that a power to suspend or terminate could not be reasonable and so wasn’t really relevant). On this question, again I think Justice Nicholas’ judgment is the more interesting one: his Honour talks about the difference between ‘direct’ powers to prevent infringement (ie, to stop that particular act) and indirect powers (like taking away internet access so they can’t do anything, let alone infringe, online).

The judges also talk about another statutory factor, the ‘relationship with the infringer’, but it’s not that interesting. I never really know what to make of this factor anyway. There was a contractual relationship – so? Really, most of the action is in the next of the statutory factors in authorisation: whether iiNet took reasonable steps to prevent the infringement.

Reasonable steps

All three judges accept that sending warnings to users ought to be considered a reasonable step. None of the judges was wiling to accept that people when notified of copyright infringement would simply ignore the notice: not all would be aware that such activities infringe copyright; not all would be aware they can be detected.

Worryingly for many, I suspect, is the fact that all three judges also contemplate that suspension or termination of internet service is also a reasonable step. In this respect, a really important consideration that the various judges point to is the Safe Harbours: specifically, the provision that requires parties wanting to take advantage of the Safe Harbours to have, and reasonably implement, a policy for the termination of the accounts of repeat infringers in appropriate circumstances. This is evidence, to the judges, that termination is contemplated as a reasonable step.

iiNet’s protestations concerning the expense, difficulty, and complication of having a system for sending warnings and following up with suspension or termination fell on deaf ears of two judges. Justice Emmett, of the three judges, seems the most ready to count this as an issue, noting the ‘difficult judgments’ involved, the number of notices received, the many, many issues of design choice in such a system (see paragraphs 206-207). Perhaps for this reason, Justice Emmett is the most explicit in practically setting out his own version of a graduated response system. The key paragraph here is paragraph 210. It’s kind of too long to quote here, but go have a look. In summary, it says that ‘before it would be reasonable for iiNet to take steps to suspend or terminate a customer’s account’, AFACT would need to send notices providing ‘unequivocal and cogent evidence’, and undertake to reimburse iiNet for its reasonable costs. But most extraordinary is the way that the Judges say that AFACT’s notices should set out a series of specific steps that it requests. According to the Judge, AFACT should request the following steps:

  1. iiNet should inform its customer of the particulars of the allegations of primary infringement involving the use of that customer’s iiNet account
  2. iiNet should invite the customer to indicate whether the service has been used for acts of infringement as alleged;
  3. iiNet should request the customer either to refute the allegations or to give appropriate assurances that there will be no repetition of the acts of infringement;
  4. iiNet should warn the customer that, if no satisfactory response is received within a reasonable time, perhaps 7 days, the iiNet service will be suspended until such time as a reasonable response is received;
  5. iiNet should warn the customer that if there are continued acts of infringement by use of the service, the service will be terminated;
  6. iiNet should terminate the service in the event of further infringements.

OK, strictly, Justice Emmett is not saying that iiNet would have to follow this procedure: it’s what AFACT should request. But the suggestion is strong that this is what Emmett J thinks a reasonable set of steps looks like.

Um, judicial legislation anyone?

It’s kind of extraordinary that his Honour would set out a system in such detail. These weren’t, after all, the facts before the court. It’s also kind of extraordinary that this is his version of reasonable steps, when this set of conditions doesn’t look anything like what has been legislated in other countries, like France, the UK, South Korea, or New Zealand. Justice Emmett’s ‘reasonable steps’, if that is what these are (and as I said, it’s not entirely clear) have none of the procedural protections found in other places – and specifically contemplate termination of Internet service – something the UK wouldn’t even do without a further order from Parliament and which requires independent decision-makers in France, South Korea, and New Zealand. So, like, wow.

Justice Nicholas, on the other hand, is only prepared to say that ‘an ISP should be given considerable latitude when working out the detail of such a system. It is always possible to argue that a system for the issue of warnings and termination could be tougher than it is. But it would be difficult to criticise an ISP on that account if it acted in good faith to devise and implement a system that involved taking such steps against subscribers who the ISP was satisfied had used (or permitted others to use) its facilities for the purpose of committing flagrant acts of copyright infringement’ (at para 750).

Other interesting stuff

There’s so much more, but this post is already too long. Look out for:

  1. The various judges’ views on whether iiNet ‘encouraged’ infringement, and Justice Nicholas’ discussion of iiNet’s alleged ‘indifference’;
  2. The discussion of the Safe Harbours (no judge thought iiNet could use it);
  3. The judges’ struggles to give s 112E some meaning;
  4. The issue of who bears the cost. Emmett J is explicit: AFACT should offer to reimburse. Justice Jagot thinks that this could have been part of a conversation that should have occurred. I didn’t really see much from Nicholas J on this question (but the judgment is long, maybe I’ve missed something).

Oh, and here’s something interesting. You will look in vain for references to much overseas case law or any of the mound of academic writing on the issues involved. If anything, this suggests to me the continuing isolation of the Australian law of authorisation from the law in other jurisdictions. Too close an examination of overseas case law might reveal the differences too starkly? Of course, it would also have made the judgment even longer than it already is. I suppose we should be grateful for small mercies.

Where to from here?

Interesting question. We’ll have to see if there’s going to be an appeal to the High Court (or rather, application for special leave). Failing that, it’s back to the negotiations. Questions of cost (who bears it) are unresolved. It’s not clear to me whether there is enough guidance here to lead to a ready deal, despite Emmett J’s attempts to write a Code of Conduct for the industry. Termination of service is something I can’t imagine the internet industry is all that keen on, but AFACT’s hand to demand more than the mere passing on of warnings may have been strengthened by the frequent references to the reasonableness of termination as a response. So, much to think about. I suppose I should be pleased…

Kimberlee Weatherall is a senior lecturer at the University of Queensland

This article was cross-posted here at LawFont

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Weapons in the Piracy Wars: COICA and Domain Name Seizures

March 17, 2011

By Jake Goldenfein

You may have encountered this image if you recently tried to stream a sporting event online. Domain name seizures in the US occur under civil forfeiture and seizure provisions in the Crimes and Criminal Procedure title of the United States Code. Being territorially restricted, those provisions allow the US Immigration and Customs Enforcement agency (ICE) to distrain websites with a .com, .net or .org suffix.

Recent seizures of websites linking streamed sporting events (conveniently 10 days before the Super Bowl) were the directive of phase 3 of ICE’s Operation ‘In Our Sites,’ which began in June 2010. The mandate of ‘In Our Sites’ goes beyond sporting events however, and has targeted websites connected to counterfeit goods, child pornography and first-run movies. Although the process and propriety of those seizures have been questioned, presently working its way through the US political system is the Combating Online Infringement and Counterfeits Act (COICA) that will provide an expedited process to block domains and extend ICE’s reach to content hosted outside the US.

COICA (S. 3804) would authorise the Attorney General to obtain injunctions in rem against websites ‘dedicated to infringing activities.’ Sites are defined as dedicated to infringing activities if ‘primarily designed’, have ‘no demonstrable commercially significant purpose or use other than,’ or are ‘marketed by its operator,’ as offering copyright infringing goods.

Effectively, COICA creates an internet blacklist with ‘offending’ websites added by Court order. Originally there was a second blacklist controlled by the Attorney General without judicial oversight, however that was jettisoned in the bill’s latest iteration. By obtaining a Federal Court injunction, the Attorney General orders U.S. domain name registrars to stop resolving blacklisted domains, leading users instead to an error message.

For infringing domains outside of the U.S, the bill demands internet service providers block offending foreign addresses. This does not prevent access outside of U.S territory, but rather is aimed at preventing the importation into the US (censoring) of goods and services offered by websites deemed ‘dedicated’ to infringing activities.

Introduced by Democratic Senator Patrick Leahy in September, the bill received unanimous approval by the Senate Judiciary Committee in November 2010 under Leahy’s chair. Not surprisingly three of Leahy’s top five campaign contributors are large media organisations. Yet substantial opposition from various groups including Internet Engineers, Human Rights Groups, the Net Coalition, some Senators, and law professors has been successful in preventing the bill passing a full vote on the Senate floor, leading to another Judiciary Committee hearing on 16 February, which led to discussion of substantial modification, and likely a follow-up hearing.

Arguments against the bill include:

  • Blacklisting of websites by Justice Department officials without sufficient judicial oversight offends due process and threatens legitimate political speech.
  • Definitions within the bill, including ‘facilitating infringement’ and ‘dedicated to infringing activities’ are very broad.
  • Blacklisting for copyright infringement purposes may undermine U.S. secondary liability law as well as existing copyright exceptions, limitations and defences.
  • The censorship process causes entire domains to vanish, not just infringing pages or files.
  • The bill creates precedent for internet censorship, and congress should consider the effect for countries less protective of citizens’ rights of free expression.
  • The extraterritorial reach of the court prevents a full and fair trial with all interested parties present.
  • The bill may affect legitimate digital services such as cyberlockers if the Department of Justice decides that piracy is ‘central’ to their businesses.
  • Blacklisting may apply to sites that discuss and advocate for P2P technology or piracy because they sometimes link tools and information intended for file sharing, despite the otherwise political nature of their speech.
  • Censorship may undermine the stability of the internet by encouraging the use of circumvention measures and rerouting internet traffic away from the U.S.

But perhaps the most compelling arguments are found in the joint letter from 49 legal academics in the U.S. Citing jurisprudence, they contend ‘the bill amounts to a constitutional abridgment of freedom of speech because it directs courts to impose “prior restraints” on speech, which are the most serious and least tolerable infringement of First Amendment rights.’ They argue such cases ‘require a court, before the material is completely removed from circulation to make a final determination that material is unlawful after an adversary hearing.’

Contrary to that requirement, the professors claim ‘the Act permits the issuance of speech-suppressing injunctions without any meaningful opportunity for any party to contest the Attorney General’s allegations of unlawful content’ because of inadequate notice provisions and the capacity to enter injunctions ex parte. Requiring the shut down of entire domains rather than blocking specific content is described in the letter as ‘burning down the house to roast the pig.’

More profound however, is the academics’ claim that the bill’s ‘egregious Constitutional infirmities… will not survive judicial scrutiny’ suggesting its significance ‘is entirely symbolic.’ This would be the first time the US would require internet service providers to block speech because of its content. Enjoining ISPs to police users’ activities is an issue of growing judicial significance, not simply in circumstances like the iiNet case in Australia, but also for a range of future measures, including filtering, censorship and levying, that may require ISP cooperation.

Content industries have sought this law for years, and view the new capabilities as a magic bullet for copyright enforcement, with the MPAA and RIAA extensively lobbying for its passage. Lauding the legislation, the bill’s proponents emphasize the derisory economic consequences affected by infringing rogue sites. Previous MPAA interim boss Bob Pisano defended the bill, claiming targeted sites ‘exist for one purpose only – to make a profit using the internet to distribute the stolen and counterfeited goods and ideas of others,’ and that the ‘economic impact of these activities – millions of lost jobs and dollars – is profound.’ Pisano argues the First Amendment was not intended as a shield for those who steal, irrespective of the means. ‘Theft is theft, whether it occurs in a dark alley or in the ether, and to attempt to distinguish the two is to undermine the most basic tenets of our criminal laws.’

Clearly rhetoric laden, such speech reverts back to the questionable conflation of tangible and intellectual goods, and co-opts morality for its justification without acknowledging the concomitant censorship issues. However, other Hollywood groups have claimed that concerns of unlawful censorship are an ‘absurd misrepresentation of civic rights’.

For organisations like MPAA and RIAA who maintain a controversial program of prosecuting online copyright infringement, the new law would amount to another weapon in the arsenal of content protection. But beyond copyright, the bill highlights emerging issues in digital censorship and jurisdiction by entrenching in U.S law filtering of international content that offends local laws – a dangerous precedent that may expand to other types of speech. Passage of this bill would mark a substantial shift in lawmakers’ willingness to regulate cyberspace and a fortiori against the principle of the Single Global Internet.

Jake Goldenfein is a PhD candidate at the Melbourne Law School

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Collective Management of Copyright: Issues Emerging from the Google Books Program

March 4, 2011

By Jake Goldenfein

February 18th 2011 marks one year since the Amended Google Books Settlement (AGBS) fairness hearing, with Judge Denny Chin yet to issue a ruling. Though the Google Book Search program cannot be implemented without Judge Chin’s approval, both academy and industry are prodigiously analysing its potential ramifications. Establishing a collective management organisation (CMO) called the Book Rights Registry is one of the AGBS’s more provocative features. Very simply, the Book Rights Registry would collect and distribute revenues from the Google Books program to the rightsholders of digitised texts. As the specific issues generated by the AGBS fall to redoubled investigation, so do their corollaries for the institution of copyright. Accordingly, on January 28th 2011, the Kernochan Centre at Columbia University Law School in New York held its annual symposium on CMOs and their role in new licensing regimes. By way of introduction, June Besek, Director of the Kernochan Centre, noted the AGBS was one of the two fundamental reasons why CMOs are receiving more attention (the other being that collective management is a lesser institution in the US than the rest of the world), making the symposium extremely timely.

Google’s inclusion of collective management in the AGBS has reinvigorated the analysis of CMOs, as collective management may play a part in the AGBS’ controversial rights clearing process. To briefly summarise – Google began digitising the collections of major US university libraries, making available snippets of text for search engine enquiries. The US Authors Guild and Association of American Publishers brought a class action lawsuit against Google, claiming copyright infringement on behalf of rightsholders of the texts scanned and digitised. Google originally asserted a fair use defence based on the limited quantity of text displayed as search results, however the parties eventually settled, authorising Google to engage in activities more expansive than those inducing the original action. Google would be permitted to make available full, digitised texts on private and institutional bases, with revenues distributed to rightsholders through the Book Rights Registry. Controversially, the settlement used the ‘opt-out’ mechanism of class-action procedure to subvert the traditional requirement of permission from rightsholders. This clever piece of litigation strategy may enable Google to digitise and commercialise (actions within the rights reserved by copyright) the legacy of western publishing without undergoing the otherwise impossible task of clearing rights. Remarkably, this inversion of the default copyright position for a massive canon of information is achieved through private (settlement) action rather than legislative reform.

Many are familiar with the function of CMOs, such as APRIA in Australia, who license music performance rights from its repertory to users of all kinds. For example, if you operate a bar, you pay a fee to APRIA to lawfully play music to the public. The CMO determines the fee, then distributes revenues to rightsholders based on its usage data. While APRIA has its equivalent in the US, CMOs in other categories of rights are far less prolific. Perhaps this paucity is linked to the poisonous connotations of the term ‘collective’ amidst an American environment of strict economic rationality. Indeed the keynote speaker at the conference, Daniel Gervais, argued a purely economic approach to collective rights management makes those agencies’ role less compelling. He argued, in Europe comparatively, collective management is considered a preferred system rather than a necessary evil.

Gervais highlighted some central features of collective management including the lack of excludability. Any user may access any work within the CMO repertoire provided they pay the licensing fee. This reduces transaction costs, and highlights how, while industry actors often have a program of saying ‘no’, CMOs generally say ‘yes’. In this sense, CMOs may facilitate movement away from the permission culture that accentuates the conflicts of copyright in the internet age.

Schott Hemphill, an anti-trust and IP professor at Columbia Law School, discussed the competition issues regarding collective management – generally, and in reference to the AGBS. He highlighted the fundamental concern emanating from the horizontal relationship amongst rightsholders that enables setting higher licensing prices than if rightsholders were acting individually. The original Google Books settlement entitled the CMO to establish a profit maximising price. Of course, this smacks of cartelisation. However, the amended agreement clarified that the pricing algorithm enables individuals to price their works severally. Orphan works issues also emerge in an anti-trust analysis of the AGBS, with the US Justice Department contending that later entrants to the ‘ebook’ market will struggle to replicate access to orphan texts as those rightsholders (by definition) cannot opt-in. Naturally, within the massive envelope of materials digitised by Google, many rightsholders are not identified or located. By requiring absent authors to ‘opt-out’, the settlement grants Google a de facto monopoly over those works. However, Hemphill remarked Google’s substantial risks in commencing digitisation would increase access to orphan works from effectively zero, thereby obviating anti-trust liability because the cost of the product is not increased. Apart from contending the anti-trust complaint is not made out, Hemphill also declared problematic the inclusion of competition issues in Judge Chin’s fairness determination as Chin’s mandate considers legitimacy for settlement class-members only, not the public at large.

As a CMO, the Book Rights Registry utilises extended collective licensing (ECL) machinery. ECL operates by extending the relationship between rightsholders and CMOs, by virtue of law, to all individuals within that class of rightsholder. Consequently, as pointed out by Alain Strowel from the Facultés Universitaires Saint-Louis in Brussels, this model has vast utility in licensing mass digitisation projects (and orphan works). Extended collective licences are already legislatively prescribed in Europe for cable television transmissions and other communications, while Nordic ECL law has omnibus provisions facilitating application to all categories of rights (including those necessary for the Norwegian National Digital Library). Uniquely to the AGBS, the legal extension to ‘outsiders’ is by virtue of private law, not legislation, and the benefits flow to only one user – Google.

Berkeley Law School professor Pamela Samuelson objected to the AGBS for precisely those reasons, stating her preference that other parties also have access to the mass digitisation. She argued for legislation establishing a CMO with extended collective licensing of orphan works and out of print books only (although she cites preference for the limited liability model of the proposed US orphan works legislation). Rather than vesting this resource in a private company like Google, Samuelson endorses creating a national Digital Public Library along the lines of the Europeana project.

Finally, the last speaker at the Symposium, Séverine Dusollier from the University of Namur succinctly highlighted the spectrum of licensing options from individual management of rights to compulsory licensing, and canvassed the various legislative proposals including levies on internet use and devices, and commandeering ISPs as collection agencies, licensors and enforcers.

The collective licensing options discussed at the conference have been subject to varying amounts of analysis and implementation. Clearly, the importance of developing adequate and appropriate licensing regimes is not escaping academics or policy makers, and the quantity and complexity of those options is only expanding. However, convincing established content industries continues to suffer for their preference of Digital Rights Management technologies over licensing innovation. For that reason, many eagerly await Judge Chin’s determination. Those opposed to the AGBS often cite Google’s ‘end-run’ around copyright law and the danger in privatising of such a phenomenal resource. However, considering US Congress’ inability to even pass necessary orphan works legislation, it is questionable whether the US Government has the political, let alone technical means to bring such a valuable public asset into fruition. In addition, recent US copyright reform focuses predominantly on term extension and fiercer enforcement, leading some to prefer Google’s vision of copyright to that of the US Government. No doubt whether or not the AGBS is approved, the concept will remain a substantial influence on the progress of digital licensing in times to come.

Video of the symposium is available on the Kernochan Centre’s website here.

Jake Goldenfein is a PhD candidate in Law at the University of Melbourne

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