Has WikiLeaks Gone Far Enough?

November 4, 2011

By Jake Goldenfein

Before a full house at Sydney’s Festival of Dangerous Ideas the question was posed to Julian Assange – ‘has WikiLeaks gone far enough?’ His answer, of course, was an emphatic ‘no’. But in justifying that position Assange revealed more about his organisation’s mission and ethical validation than in many previous public appearances.

From Ellingham Hall in Norfolk, Assange’s image beamed into the Opera House theatre where he addressed not only whether WikiLeaks had gone far enough, but also what more WikiLeaks had to do. Questions since rendered more germane by the announcement that WikiLeaks has suspended further publication and may cease operations by the end of the year.

WikiLeaks and conspiracy

A passage cited from Aleksandr Solzhenitsyn’s novel Cancer Ward (in which a mother questions whether or not to burden her son with the rib-breaking weight of the truth) inferred Assange’s continuing mission and what WikiLeaks is yet to achieve – not simply greater transparency, but the revelation of hidden truth. While Assange acknowledges we can never really know ‘truth’, he argues what is false can be determined with enough information. And that negation, according to theory that animates WikiLeaks, exposes how governments strive for domination as well as the conspiracy that enlivens them.

For Assange, the conspiracy is a transnational security complex run amok. No longer a simple ‘patronage’ network or cold war relic but an elite security shadow state organised through confidential networks and agreements between military contractors and intelligence agencies. Assange cited research suggesting the existence of over 900,000 ‘top secret’ security clearances in the US, implicating one in every 300 citizens – including children, as evidence of the secret network. And further proof, for Assange, that the shadow state is gaining power is in the 6% funding increase for the US military complex despite overall tax revenue dropping 20% since the global financial crisis.

These claims reflect an aspect of WikiLeaks’ ideology located outside general government transparency and accountability activism. While Assange agrees that external government accountability is essential, WikiLeaks’ recent action challenges the categorisation of the group as a benign actor lawfully pursuing governmental accountability and participatory democracy. Rather, it seems Assange seeks to expose something more fundamental – to free us from illusion – he wants, as McKenzie Wark describes, ‘the workings of the world untied’ (see ‘Abstraction/Class’ in A Hacker Manifesto (2004)).

Early in the WikiLeaks media frenzy Guy Rundle insightfully wrote about the progressivist, even Marxist/Leninist motifs in WikiLeaks’ mode of action, as extrapolated from Assange’s 2006 essays ‘State and Terrorist Conspiracies’ and ‘Conspiracy as Governance’. Rundle saw a fissure between the networked global anti-capitalist movement and WikiLeaks’ counter-conspiratorial practice. He saw actions challenging the furtive corporate-state nexus rather than a general push for accountability.

For Rundle, these actions include releasing categorically large volumes of information such that the targeted powers cannot manage the process. Massive leaks, not with the anarchic goal of dissolving governance, but intended to ‘uncouple governance and conspiracy’. Leaks large enough to prohibit regimes from restabilising and eventually incorporating leaking as ‘a safety valve, steadily releasing pressure in a version of Marcuse’s “repressive tolerance”.’

WikiLeaks’ data ‘dumps’

It is precisely this scale of leak however, that provokes the greatest ethical problem for WikiLeaks. Early in September WikiLeaks released its entire cache of unredacted US Embassy Cables after discovering they were accessible using a password published in Guardian journalist David Leigh’s book ‘WikiLeaks: Inside Julian Assange’s War on Secrecy’. Assange explained that once the cables were available online publication was the only rational action to preserve the information’s ability ‘to create reform and stoke revolutions’.

WikiLeaks’ former media partners all publically denounced the action, however Assange argued that condemnation was mainstream media abusing its voice to protect its institutional integrity. Instead, Assange claimed the release enables WikiLeaks to be used as a lens into the failures and biases of mainstream media. He argues that by facilitating comparison of the mainstream media stories and the original sources, the release demonstrates the spin and ‘corruption’ in the most powerful English speaking media institutions.

When asked whether ‘it was acceptable’ to publish the names of individuals who may be endangered by the unredacted cables Assange’s response resonated the ideological position of the organisation. He noted that when WikiLeaks began releasing the cables 18 months prior they established rigorous processes, in concert with major media organisations, to ensure names were properly concealed. They even courted the US State Department for assistance to ensure publishing the cables would not potentially harm informants. However, Assange argued the mainstream media’s editorial decisions, including New York Times’ failure to publish a story on ‘Taskforce 373’ (a military unit performing extra-judicial assassinations in Afghanistan), and redacting the cable that described a Reuters correspondent working for US intelligence indicated coercion by the very ‘shadow state’ Assange was trying to illuminate.

As ‘3000 volumes of international political history over the last 6 years’ and ‘the greatest intellectual political treasure put into the historical record in modern times,’ for Assange, the ethical justification for the bulk publication lies in the character of the material itself and its sufficient size to have ramifications for conspiratorial state actors.

WikiLeaks and lawfulness

These actions however, are a blatant non-observance of the framework of media freedoms and responsibility forged by the early press and still governing media today. Assange’s position suggests that the laws governing media, constitutive of where the public interest lies with respect to ‘the right to know’, are no longer relevant. This ideology, clearly necessary to the WikiLeaks theory, prosecutes WikiLeaks dissociation with lawful transparency activism and highlights the radicalism Assange is willing to pursue to achieve his goals. Indeed Assange’s circumventing legal institutions suggests tacit agreement with legal historian A.W.B Simpson’s criticism of ‘judicial passivity’ in failing to exercise control over ‘the vigilant state’ (see ‘The Judges and the Vigilant State’ (1989) 4 Denning Law Journal 145). That is, the state or executive who at the same time as protecting us from espionage, terrorism and subversion, threatens liberty and seems to engage in deceit and illegal activity on an uncertain scale. Therefore, outside the institutional boundaries of what we have ‘the right to know’, WikiLeaks requires a personal choice whether it is dangerous, or rather a force weighty enough to disrupt the status quo. This, of course, remains and will remain difficult until WikiLeaks’ systemic consequences are better known.

Jake Goldenfein is a PhD student at the Melbourne Law School

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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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CMCL and IPRIA seminar on Human Rights and Intellectual Property

June 2, 2011

By Rebecca Mouy

In a seminar on Wednesday 11 May at the Melbourne Law School, Professors Larry Helfer and Graeme Austin discussed their recently published book Human Rights and Intellectual Property: Mapping the Global Interface (Cambridge University Press, New York, 2011).

The book explores the conflation of two areas of law that have been historically isolated – human rights and IP. The authors note that governments, policymakers and activist communities often raise human rights concerns such as freedom of expression, public health, education, privacy, agriculture and the rights of indigenous people to oppose the expansion of IP rights. On the other hand, creators and owners of intellectual property argue that there are human rights justifications for expanding legal protections.

Helfer and Austin drew our attention to the Universal Declaration of Human Rights as a textual basis for the intersection of human rights and IP. Article 27 reads:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Helfer outlined factors that have led to increased engagement between the two traditionally distinct legal regimes:

●        expansion in IP law;

●        increased attention to indigenous IP rights;

●        inclusion of IP rights in the TRIPS Agreement and implementation of treaties that exceed TRIPS standards;

●        growing recognition of human rights obligations of multinational corporations; and

●        multinational corporations’ attempts to invoke IP rights.

Helfer stated that increased engagement between the two legal regimes is inevitable. Areas where we already see conflation are: patents and the right to life; plant breeders’ rights and the obligation to provide adequate food; and trade marks and freedom of expression. It follows, in the authors’ opinion, that the more pressing concern is how the two legal regimes ought to interact.

The authors set out to develop a normative framework in which to approach the interface. Helfer discussed two emerging approaches. The approach asserted by the UN is that of ‘fundamental conflict’. This approach conceives of the two regimes as fundamentally incompatible, and asserts that human rights should take primacy over IP. It has been applied in the context of the global fight against HIV aids to argue that patent rights must be abrogated in order to prevent the deaths of millions of people. Helfer argues that the two drawbacks of this approach are that it is static rather than flexible, and that it lessens incentives to innovate.

Another approach is that of ‘co-existence’. The primary concern under this approach is how to strike the appropriate balance in order to encourage innovation as well as protect human rights. Under this approach, certain policy levers are enacted that favour access to scientific innovations, such as the Doha Declaration 2001 and compulsory licensing in Thailand and Brazil.

Helfer and Austin advocate a normative framework that moves beyond ‘conflict’ and ‘co-existence’ to a pragmatic approach based on regulatory reform. Under this approach, policymakers would ideally identify basic human rights and work backwards to develop government policies to achieve these outcomes. Such government policies would aim to harness the market (ie protect IP rights) in order to achieve human rights outcomes.

Austin spoke about the circumstances that sparked his interest in the interface of human rights and IP including a growing sense in the community that the IP regime was too strong, lasted too long and inappropriately restricted human rights. However, he felt that suggestions to constrain the IP regime were crude, impractical and inconsistent with public international law obligations. Austin sought to develop a legal and normative basis for constraining IP that was rooted in sources of international law, for example international humanitarian law.

Austin also discussed some of the complexities of engaging with human rights and IP. In particular he wanted to resist viewing the two regimes as separate. Human rights, he said, should not be regarded as ‘pushing back’ against IP. He raised the example of copyright in educational textbooks and the right to education. Austin thinks that it is ‘facile’ to say that copyright rights should give way to the right to education, and that there needs to be a very careful balance between incentives and access. Austin pointed out that there is nothing in theory in the copyright regime that prevents the creation of substitute education materials. However, if other people do not have the capacity to take advantage of the structural regime of copyright law then the copyright regime is much stronger in practice than in theory.

Associate Professor Shaun McVeigh provided commentary at the end of the seminar. He commended the authors’ treatment of international law as separate bodies and institutions, rather than an overarching or singular regime. He noted that the authors had avoided the assumption that human rights and IP are necessarily reconcilable. Finally he made reference to the pragmatic approach taken in the book, where emphasis was placed on jurists’ and students’ duties to engage with the interface of human rights and IP. Professor McVeigh also put forward three provocations:

●        How do the authors account for multiplicity of international laws, and in particular the treatment of international law by indigenous communities as opposed to the traditional European conception of international law?

●        What are the responsibilities of office of a person wishing to combine the areas of human rights and IP? Are diplomacy and policy the only ways to approach the interface?

●        Are the authors motivated by a desire to bring some of the technicality and drafting of IP law to human rights law?

Rebecca Mouy is an LLB candidate at the University of Melbourne

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Patent, Trade Mark, Enforcement – the whole kit and caboodle, all in one exciting Bill…

April 7, 2011

By Kimberlee Weatherall

At an IP Academics’ conference in early February, I remember Professor Di Nicol asking, rhetorically, ‘where has all the patent reform gone?’ Di pointed out that we’d had any number of ACIP Reports, ALRC Reports (like that on Gene Patenting), and IP Australia Discussion Papers, all with no actual legislation resulting.

No more.

No doubt many are already aware of the Intellectual Property Laws Amendment (Raising the Bar) Bill. An exposure draft for this Bill was released by IP Australia on 3 March, with comments due last Monday, 4 April. The provisions of the Bill have been discussed at some length elsewhere, too, including some very interesting, thorough discussion of Schedule 1 on the Patentology blog.

In summary, the Bill has 6 Schedules, and mostly deals with patent, although it has some important Trade Mark bits too.

  • Schedule 1 is meant to be about ‘raising the quality of granted patents’, but, in short, it’s about standards for granting a valid patent. It covers everything from changing the way prior art is considered in assessing whether a patent has an inventive step, making the requirement of usefulness a bit more real by requiring a ‘specific, substantial, and credible use’ for the invention; to the effective abolition of ‘fair basis’ and its replacement with a concept of ‘support’ drawn from European law.
  • Schedule 2 proposes a new research exemption in patent, something that has been discussed for years now and is long overdue, to be honest.
  • Schedule 3 is meant to be about ‘reducing delays in resolution of patent and trade mark applications’, which seems to be mostly about finding ways to speed up patent and trade mark oppositions. I’m not entirely convinced the proposals will work, not least because I can’t see anything there that really deals with extensions of time in opposition proceedings that can really extend the time of an opposition. In any event, the proposed changes mostly create a framework within which more detailed regulations will be made. It is hard, therefore, to predict the ultimate outcome of these reforms.  Perhaps more important (and likely more effective) are the proposed amendments to divisional patent applications. ‘Divisionals’ happen (in general) when a patent application is ‘split’ into more than one application. The basic idea is fine, of course, but it can be used in all kinds of interesting strategic ways, including, at the moment, splitting an application off into a divisional when the main application is opposed by someone else – thus getting a patent through faster without the opposition applying to it. Under the proposed changes, applicants will only be able to file divisionals up to the date by which oppositions have to be filed. So, at least if an opposition is filed at the very end of the opposition period, it won’t be possible to split off a divisional patent to avoid the impact of a patent opposition. There are a few other strategic moves that are discussed in the Explanatory Memoranda which will be precluded by this change. The change seems fair to me.
  • Schedule 4 is about ‘assisting the operation of the IP profession’ – and deal with patent attorney privilege (like legal privilege, but for patent and Trade Mark attorneys) as well as some disciplinary stuff, and material about registering attorney firms. Potentially interesting stuff in there that tries to define what counts as giving ‘intellectual property advice’ – raises interesting questions about what bits of what attorneys do, don’t count as giving legal advice.
  • Schedule 5 is about enforcement. It makes some substantial changes to enforcement at the border, mostly by introducing a requirement that people whose goods are seized on the insistence of a trade mark or copyright owner will now have to positively claim their goods (rather than having them returned as a matter of course if legal proceedings aren’t commenced within 10 days by the IP owner). We also have a full re-write of the trade mark criminal offences (creating two levels, summary and indictable, like in the Copyright Act), and the addition of additional damages for ‘flagrancy’ in civil proceedings.
  • Schedule 6 is (allegedly) about ‘Simplifying the IP system’. It covers a miscellaneous collection of stuff, including (a) giving jurisdiction over design matters to the Federal Magistrates’ Court, (b) amending secret use in patent law, (c) ‘fixing up’ aspects of the grace period in patent; (d) a new system to allow the Commissioner to revoke acceptance of a patent prior to grant; and (e) repealing the requirement in s 45 for a patent applicant to inform the Commissioner of the results of certain searches,

With such a smorgasbord of issues, it’s hard to know what to comment on. Much of what I might otherwise have said about the patent stuff has already been said by Patentology: that attempting to raise the bar in inventive step is a good idea but the amendments probably don’t go far enough; that the change in the usefulness requirement is good for biological type inventions where patents have been granted for fairly speculative ‘uses’. (I disagree with Patentology about experimental use I have to say – I think we need the exception in there, although I dread it’s going to end up being narrowly read by our courts).

But here’s a couple of things that haven’t been discussed in the Patentology comments or by Warwick Rothnie:

First, we have a pretty complete re-write of the trade mark criminal offences here, using that awful, awful style of criminal drafting that seems to prevail at a Federal level these days (if you remember the new copyright criminal offences, introduced in 2006, you’ll get the picture – pages and pages of text and none of us any the wiser about what it means because you have to go to the Criminal Code to even begin making any sense of it). I suppose we should be grateful that there’s no proposal here to introduce Infringement Notices, as we had in copyright back in 2006 (then again, it would be hard to justify introducing infringement notices in trade mark when they haven’t even been used in copyright for years after coming into the legislation, wouldn’t it?). But two things are really interesting about the trade mark criminal offences. First, some of the offences apply a standard of ‘negligence’ to the mental element. Thus it will be a summary offence to apply a mark to goods, being negligent as to whether the mark is, or is substantially identical to, a registered trade mark. The first problem is – why would negligence be an appropriate standard here at all? Well, so I thought the Explanatory Memorandum might help here. So I went to look, and it says this:

‘It is appropriate to have a lower fault element of ‘negligence’ for the circumstance elements of the offences because of the unique nature of intellectual property rights. Despite the clear legal position that intellectual property is a form of personal property, evidence has shown that some people see the violation of intellectual property rights as trivial and a ‘victimless crime’. Such attitudes may extend to an unacceptable failure to ascertain the factual circumstances in which their conduct would be criminal. However, consistent with the general approach taken to other forms of personal property, and to copyright goods, a person who uses a registered Trade Mark (what could be another person’s property) should be under an objective obligation to check that the mark is not registered. Otherwise, the effectiveness of the deterrent is undermined, with the risk that intellectual property rights are less protected than tangible property rights. The introduction of an objective negligence standard will assist the effective administration of justice and perform an important educative role in ensuring that people take intellectual property crime seriously.’

OK – what? So hang on, failing to check the trade marks register when you’re applying a mark to goods could be a criminal offence, because one ought to check the register? And we want it to be criminal because that will ‘perform an important educative role’? Last theory on this kind of thing I read suggests over-criminalising behaviour that the average person does not think as criminal is not likely to increase respect for either trade mark law or criminal law.

And I still don’t even know what it means to be [criminally] ‘negligent’ about whether your mark is identical to a registered mark. Doesn’t ‘negligence’ import some kind of understanding of what would be considered appropriate standards of behaviour (you know, reasonable man/woman and all that?) And if that’s true, what is the standard of vigilance about branding activity that is considered socially acceptable these days? Is Woolworths criminally negligent for using ‘honest to goodness’, that being the trade mark of some organic supplier or other? Honestly, I wonder whether they really think these things through sometimes.

Something else that hasn’t got a lot of comment is this new customs scheme for requiring people whose goods are seized to actively claim their goods. I don’t know, and I’ve not thought it through sufficiently, but I wonder whether that is consistent with Article 55 of TRIPS, that says goods shall be returned if the IP owner doesn’t commence proceedings to continue the suspension. I mean, I know that you can have further customs procedures without breaching TRIPS (you can have payable duties and the like), but can you impose a further element (this claim scheme) that is clearly geared entirely towards assisting IP owners in enforcement and that leads to forfeiture, effectively on the grounds of claimed infringement, without legal proceedings? I’m not at all sure about that.

Here’s another interesting little beastie in the Bill. Proposed s 50A of the Patents Act. This would give the Patent Commissioner power to revoke an acceptance any time before grant. The explanatory memorandum says it will help with admin type problems, but it seems to me that it might be used like the equivalent Trade Mark Act provisions are being used – as a kind of opposition-lite, where a prospective opponent writes to the Commissioner asking them to exercise their discretion to revoke – without going through the full opposition process. I see the potential for more strategic game playing, even as the Bill has tried to remove other parts of the Act that have facilitated various interesting patenting and patent dispute strategies.

Overall, too, I wonder about some of the moves in patent. It feels like IP Australia has deliberately sought to shift Australian law closer to European patent law – for example, using European language in relation to support and other documentary requirements. Why Europe? Why European law in particular? Aren’t we meant, under our Free Trade Agreement with the US, to be ‘endeavour[ing] to reduce differences in law and practice between [Australia and the US], including in respect of differences in determining the rights to an invention, the prior art effect of applications for patents, and the division of an application containing multiple inventions’? (AUSFTA Article 17.9.14). I mean, I’m not a big AUSFTA fan, as you may know, but this does look quite a lurch in a different direction, which makes you wonder whether Article 17.9.14 has any relevance at all…

One more thing worthy of comment – Item 86 in Schedule 6 amends, and broadens, another copyright exception. This is the one found in the Patents Act s 226, and allows reproduction and other uses of documents open to public inspection. I’ve said it before, I’ll say it again. Every time the government decides it is going to create a new little copyright exception so it can do something it needs to do, it really ought to be asking itself: why do I have to do this? And wouldn’t it make more sense to introduce a general, fair-use type exception? Honestly???

Kimberlee Weatherall is a senior lecturer at the University of Queensland

This article was cross-posted here at LawFont

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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

(return to the top of this edition)

2 Comments | censorship, Copyright, economics, iiNet, Internet, law, piracy | Tagged: , , , , , , , , , , , | Permalink
Posted by clarissaterry

In this edition (#3)…

March 25, 2010

The Fortnightly Review’s Legal Eagle surveys Australian laws addressing cyber-bullying and sexting.  In our second article, lawyer Michael Crawford reports on a recent conference regarding controversial copyright cases – the Telstra directories case, the Men at Work case and the iiNET case.  Finally Associate Professor Paul Jensen provides an economist’s perspective on what the damages in the Men at Work case should be.

Comments Off | Copyright, cyber-bullying, law, legal, Media law, sexting, Uncategorized | Tagged: , , , | Permalink
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Legal Eagle analyses the digital landscape – cyber-bullying and sexting.

March 25, 2010

by Katy Barnett

1. CYBER-BULLYING

Cyber-bullying in Australia – Facebook

It’s not only Lara Bingle and other celebrities who have to worry about cyber-bullying, “sexting” and how to control the publication of generally offensive material. In recent weeks, a few incidents in Australia have raised these questions. First, offensive material was posted on a Facebook tribute page for 12-year-old Brisbane schoolboy Elliott Fletcher, who was stabbed to death by a fellow pupil at his school. Soon after, offensive material was also posted on a Facebook tribute page set up for murdered Bundaberg schoolgirl Trinity Bates. Meanwhile, some members of a Brisbane school formed a Facebook group which mocked the disappearance of Daniel Morcambe in 2003. Some other students from a different school formed a group which bullied a staff member, and were “disciplined”. And apparently there’s a whole genre of photos known as “revenge porn” out there on the web (as the name suggests, it involves an jilted lover posting explicit material about an ex-partner).

Cyber-bullying in the US – the MySpace case

The problem of bullying via the internet is not new. In the US in 2006, the issue came to the attention of the world after a 13-year-old girl named Megan Meier committed suicide. Meier had made contact with a 16-year-old boy named “Josh Evans” on MySpace. The boy purported to be attracted to Meier, but suddenly the tone of the messages turned nasty, and the final message sent from the Evans account said, “Everybody in O’Fallon knows how you are. You are a bad person and everybody hates you. Have a shitty rest of your life. The world would be a better place without you.” Meier replied, “You’re the kind of boy a girl would kill herself over.” 20 minutes later, she committed suicide.

As it turned out, there was no “Josh Evans”. The profile was fake, and it had been intended to lure Meier into an online relationship with “Josh” to find out what Megan was saying about Sarah Drew, a former friend and neighbour. Sarah’s mother, Lori Drew, and an 18-year-old employee of Lori Drew’s, Ashley Grills helped set up that account and, along with Sarah Drew, sent messages purporting to be from “Josh Evans”.

Lori Drew was prosecuted under the US Computer Fraud and Abuse Act for conspiracy and intentionally causing emotional distress. She was initially found guilty of a misdemeanor breach of the CFAA. On appeal, however, Drew was acquitted, as Wired explains:

The case against Drew hinged on the government’s novel argument that violating MySpace’s terms of service was the legal equivalent of computer hacking. But U.S. District Judge George Wu found the premise troubling.

“It basically leaves it up to a website owner to determine what is a crime,” said Wu on Thursday, echoing what critics of the case have been saying for months. “And therefore it criminalizes what would be a breach of contract.”

Cyber-bullying in the UK – Facebook case

By contrast, in a recent UK case last year (briefly summarised here) an 18-year-old girl was sentenced to imprisonment after threatening to kill another girl on her Facebook page update. This was the first case of its kind in the United Kingdom.

Cyber-bulling in Europe

Meanwhile, in Italy, Google executives have recently been convicted of privacy violation for hosting a video in which a boy with autism is being bullied and taunted by four other classmates.

2. SEXTING

And then there is the difficulty of “sexting” (sending sexually explicit pictures via the Internet or via mobile phones).  In the US people who send sexually explicit messages are potentially placed on a sexual offenders’ register, and in Queensland at least, there is legislation  which could result in a similar situation.

However, it has been criticised by those who feel that naive teenagers may be ensnared by the laws. Certainly in other States as well, the photography and distribution of pictures of the genital or anal area is a criminal offence (see eg, s 41B and s 41C, Summary Offences Act 1966 (Vic)). Apparently, a survey in an Australian teen magazine revealed 40% of readers had been asked to send a naked or semi-naked image of themselves over the internet.

3. Current Civil Laws in Australia

All these cases raise a number of important questions. How far should the providers of social networking sites and other sites control what happens on these sites? Does the law operate to prevent this kind of conduct, and should it be amended to do so? To an extent, it all depends how far one believes the law should reach, and whether the law can usefully regulate conduct such as this. My own interest, of course, is on the civil law (rather than criminal law) and whether it can be usefully be adapted in a way that protects people from being bullied on the internet, but also allows reasonable freedom of speech.

Note that the criminal law in this area is being currently being reviewed by the Senate.  The ACMA has also released their third and final report on “Online risk and safety in the digital economy.”

Defamation

Defamation could be used against bullies who target a particular individual online, as it prevents publications which injure reputation by disparaging a person, causing others to shun or avoid a person, or subjecting a person to hatred, ridicule and contempt. Anonymity is not necessarily a protection against defamation, either. In a case in the US involving model Liskula Cohen, Google, who hosts Blogger, was forced to hand over the details of an anonymous blogger so that the blogger could be served with a defamation writ. (Of course, the defamation action could be said to be counterproductive, as it meant that the details of the defamatory statement were far more widely publicised than they would otherwise have been – a phenomenon known as the “Streisand effect“.)

Breach of Confidence

There may also be situations where an online communication may constitute a breach of confidence (particularly if images or content had been posted on a private setting, but are then broadcast publicly without the consent of the owner).

Breach of a “Tort of Privacy” ?

In Australia, at least, it would be more difficult to allege a breach of privacy. The most we have are some obiter comments from the High Court in ABC v Lenah Game Meats, in which it was concluded that Victoria Park Racing v Taylor did not preclude the development of a tort of invasion of privacy in Australia.

Some lower courts have since recognised an action for invasion of privacy.

  • In Grosse v Purvis, Senior Judge Skoien of the Queensland District Court used the plaintiff’s criminal action against the defendant for stalking as a peg on which to hang a civil action, stating that since Lenah Game Meats, there was “a civil action for damages based on the actionable right of an individual person to privacy.”
  • In Doe v ABC & Ors, Hampel J of the County Court of Victoria found the ABC liable for equitable breach of confidence and for breach of privacy for identifying a victim of a sexual assault in a radio broadcast. (The case settled before an appeal was delivered.)
  • In 2008, the ALRC released a report on privacy law in which it recommended enacting laws to protect people from wrongful abuses of privacy.
  • And most recently, in Giller v Procopets, Neave JA (with whom Maxwell P agreed) of the Victorian Court of Appeal canvassed the possibility of a tort of breach of privacy, but did not find it necessary to decide the issue.

So in Australia, at least, any tort of breach of privacy is nascent. Conversely, English breach of confidence law is much more clearly moving towards breach of privacy because of the influence of the European Convention on Human Rights (ECHR).

“Intentional Infliction of Mental Suffering”?

Also in Giller v Procopets, Maxwell P thought that there was nothing to preclude Australian law developing a tort of intentional infliction of mental suffering. Maxwell P noted that there is already a tort of intentional infliction of injury in Wilkinson v Downton, and thought that it was appropriate to extend that tort to mental harm.

In the US there is already a well established tort of intentional inflection of mental suffering (see for example, this post on the US case, Moreno v Hanford Sentinel). Neave JA also thought that such a tort was possible, but did not find it necessary to decide on the facts of the case before her. Conversely, Ashley JA found that the plaintiff would not have been able to recover in tort for something less than recognised psychiatric injury. So there is a possibility that a bully may be sued for intentional infliction of mental distress if US law is taken on board here.

Jurisdiction

Of course, with the internet, there may be a problem with jurisdiction if the wrongdoer is interstate or overseas, but Australian authority at this point suggests the courts are willing to work around this. Controversially, in the Gutnick case, the court allowed Joe Gutnick to sue for defamation in Victoria despite the fact that the defamatory material was published on a server in the US by a US company, because the damage to Gutnick’s reputation occurred in Victoria.

3. CONCLUSION

Perhaps if a few cases are brought against online bullies, it may bring awareness to people that what they are doing is wrong in law, not just morally wrong. Still, I can’t help thinking that a large number of perpetrators of online bullying would be likely to be teenagers against whom there would be little point in proceeding. I suspect criminal courts would be unwilling to lumber young people with a criminal record, and in civil claims, it is unlikely that young people would be able to pay damages. The law can only go so far. It’s also up to parents to supervise their children as much as they can, and to educate their children about the risks of allowing people to take compromising images of themselves.

Katy Barnett is a PhD candidate at the Melbourne Law School

1 Comment | Bingle, breach of confidence, cyber-bullying, defamation, facebook, Internet, law, legal, Media law, privacy, sexting, Uncategorized | Tagged: , , , , , , | Permalink
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Lawyer Michael Crawford reports on a recent conference regarding controversial copyright cases.

March 25, 2010

by Michael Crawford

On March 18th 2010, the CMCL and IPRIA jointly hosted a conference entitled Authorship, Anthems and Authorisation: a legal and economic review of the copyright triptych.  The conference was convened in order to discuss three very significant and recently decided cases; Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 , Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29 and Roadshow Films Pty Ltd v iiNet  Limited (No. 3) [2010] FCA 24.  See our post here for a summary of the cases.

The panel, chaired by Jock Given, consisted of David Brennan of the Melbourne Law School, Melissa de Zwart of the University of South Australia, David Lindsay of Monash University, Beth Webster of IPRIA and Philip Williams of Frontier Economics.

1. Authorship – Telstra case

The decision in Telstra v PDC, a recent judgment of Gordon J of the Federal Court, was discussed in considerable detail by David Lindsay.  In Telstra v PDC, Gordon J applied both plurality judgments in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 in concluding that no copyright subsisted in Telstra telephone directories on the grounds that they were not original literary works.

Dr Lindsay discussed, amongst others, two elements of the case.  The first was her Honour’s reliance on IceTV.  Dr Lindsay commented that, as a matter of basic legal method, Gordon J ought not to have considered the comments in IceTV concerning subsistence as binding law.  This is because, as subsistence was conceded by the defendant in that case, the comments were purely obiter dicta.  That is, the comments were incidental to the holding of the case.

The second and more substantive criticism concerned Gordon J’s insistence that subsistence under Part III of the Copyright Act 1968 requires the plaintiff to identify each author who has contributed to the work in suit.  Telstra’s inability to do this meant that it could not establish copyright in the directories.  Dr Lindsay argued that by insisting on authorial identification as a prerequisite for subsistence, her honour erroneously imposed an additional hurdle not required by Part III of the Copyright Act, which requires only that the work be original.  Dr Lindsay concluded that, to the extent that both Telstra v PDC and IceTV impose this additional obligation of authorial identification, they represent a serious departure from accepted understandings of subsistence under Part III and are wrong. 

Philip Williams also spoke about the decision in Telstra v PDC, in particular about the need for the introduction of a new legal regime for the protection of commercially valuable collections of information that are expensive to compile and, since the decisions in Telstra v PDC and IceTV, not protected by copyright.  However, Dr Williams also cautioned that the creation of any such regime will require considerable care because of the need to protect the beneficial uses to which such information is put by third parties.  The example given was the rise of web-sites which, in response to a particular search query, trawl through on-line auction sites and provide users with a list of the lowest priced items and their locations.  The challenge is thus to create a regime that is flexible enough to permit innovative and desirable third-party uses of database-type information whilst also guaranteeing a level of protection that provides a commercial incentive for organisations to engage in the costly and time-consuming process of compiling a database.

2. Anthems – “Down Under” case

The widely publicised decision of the Federal Court in Larrikin Music v EMI Songs Australia was discussed by Melissa de Zwart.  Dr de Zwart’s pithy summary of the very complex expert evidence provided by the musicologists was most enlightening to those of us who found the discussion in the case impenetrable.  Moreover, her expertise with Power Point enabled a direct aural comparison between Kookaburra and the infringing flute riff from Down Under.  The audience was then asked if they could detect the apparently objective similarity.  Opinion was relatively evenly divided, though perhaps a majority claimed they could hear the similarity.  In any case, that there was a substantial minority who could not hear the resemblance suggests either that the Court did not abide by the “ordinary reasonably experienced listener test” or that lawyers are particularly tone deaf.  One suspects the latter.

3. Authorisation – iiNET case

The final case in the trio was Roadshow Films Pty v iiNet, a case concerning the authorisation liability of internet service providers (ISP’s) whose customers illegally download copyright works using the “BitTorrent” software and the applicability of the ISP safe harbour provisions introduced into the Copyright Act as part of the AUSFTA.

Both issues were thoroughly discussed by David Brennan, who gave a concise summary of the enormous judgment.  Dr Brennan’s critique of both the Court’s legal analysis of authorisation liability and iiNet’s apparently lackadaisical approach to those of its customers who routinely infringed copyright casts doubt over whether the courts are adequately enforcing the bargain which was struck with ISPs, as represented in the changes wrought by the Copyright Amendment (Digital Agenda) Act 2000 and the safe harbour provisions under the AUSFTA.

The final speaker of the day was Beth Webster from IPRIA, whose discussion of the fundamental economic policy goals underlying copyright law complimented the predominately legal analysis of the preceding speakers.  The lively debate which followed Dr Webster’s address showed that the audience enjoyed the opportunity to discuss whether or not the present copyright regime efficiently achieves the economic and social ends it was established to serve.

Congratulations are to go to the CMCL, IPRIA, Jock Given for chairing and, of course, the panellists whose expertise and engaging presentations made for a most entertaining and informative day.

3 Comments | Copyright, damages, economics, iiNet, law, legal, Men at Work, Telstra, Uncategorized | Tagged: , , , | Permalink
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