February 2006

It looks like the SCO litigation is hotting up a little. IBM has reportedly issued subpoenas to Microsoft, Hewlett Packard, Sun and BayStar Capital in relation to their dealings with SCO. (more…)

Let me say that again, counterfeiting is a serious problem. The OECD think so, the Australian government think so – plenty of people think so. I think so. Counterfeiting, at least as it occurs within Australia, has no social value that I’m aware of, and has costs including (a) losses to the trade mark owner (lost sales), (b) the costs entailed by the deception of consumers, (c) indirect losses to the trade mark owner (for example, loss of reputation for quality, loss of ‘prestige’ value), (d) the costs of enforcement incurred by trade mark owners and governments alike, and (e) the ‘social losses’ – lost jobs, lost tax revenue, and lost investment in research and development that may arise as a result of the lost revenue.

I have a great deal of sympathy for trade mark owners who reach levels of desperation, and use hardball tactics, against counterfeiters, particularly ‘repeat offenders’. It must be incredibly frustrating dealing with parties that have little or no respect for the law or the orders of the court. It is clear, from various judgments by the Federal Court judges, that they too have little sympathy, in general, with counterfeiters and importers/sellers of counterfeit goods.

In this context, however, this judgment is a timely reminder to lawyers that they cannot play too hardball in dealing with counterfeiters, particularly counterfeiters who are unrepresented by lawyers themselves – even where the counterfeiter has displayed contempt for the orders of the court. (more…)

As noted in the previous post, last Friday I was in BrizVegas for the ACIPA Copyright Conference.

Naturally, I learned much. But here are two things I really didn’t know, that I should note. (more…)

So on Friday, I’m at the ACIPA Annual Copyright Extravaganza in BrizVegas, and Matt Rimmer is talking about Google and all the court cases against it. And one of the cases is that brought by Perfect 10, suing over the existence of its (nudie wimmin) images in Google’s thumbnail images as displayed in Google’s Image Search function. And I have a bit of a laugh to myself, muttering phrases to myself like ‘total try-on’, and ‘haven’t you read Kelly v Arriba-Soft?‘ Then this morning, I get an email from a reader, with the title ‘Girlie Photos Land Google in Legal Trouble’, with a link to this SMH story. So I’m figuring, try on. Indeed, I shoot back a response – without reading said story – saying ‘looks like a try-on to me’. Finally, this arvo I read the story. And, it transpires, there is an injunction. My reaction: what? Or, as Marty Schwimmer – says, ‘wow’.

Now I’ve read the case. In essence, a preliminary injunction will be ordered against Google (terms yet to be determined) against its copying, and displaying , of thumbnail images of Perfect 10’s nudie wimmin pictures.

The judgment has some amusing footnotes: footnote 4 in particular, where the court notes that Perfect 10 complained ‘thumbnail’ is a misnomer when the image may be 8 x the size of an actual human thumbnail. Oh, puh-lease. Amusement aside, however, the case is interesting – even for us Australians. I reckon most of the discussion in the blogosphere is likely to go to the ‘fair use’ issue: ie, is Google’s creation, and display, of thumbnail pictures ‘fair use’. The court said no – something I thought was pretty interesting. But actually, from an Australian perspective, perhaps even more interesting are some of the parallels with Cooper, on liability for linking to stuff. (more…)

This (in the intriguingly named Jeremy Jones and on behalf of the Executive Council of Australian Jewry v The Bible Believers* Church ) is one of the more unusual. Note in particular the letter attached to the reasons of Justice Conti.

UPDATE: the decision appears to have been removed from AustLII. No idea why. Sorry!

A colleague just pointed out this new journal, Copyright, to me. It looks interesting – interdiscplinary, open access, and a commitment to publishing experiments. Blurb over the fold. (more…)

Last week, a Joint hearing of the Subcommittees on Africa, Global Human Rights and International Operations and Asia and the Pacific (part of the House International Relations Committee) of the U.S. Congress was held on the involvement of U.S. firms (including Yahoo! and Google, as has been discussed in earlier posts) in upholding China’s oppressive regulation of the Internet in that country. The hearings are interesting not only for the particular points raised, but for the question it raises on who is responsible for putting pressure on oppressive regimes: private sector firms or the governments that represent them? (more…)

The blogosphere is alive over the last few days with reports that the RIAA are saying that format shifting copying, like copying music from a legitimately-purchased CD onto your iPod, is not fair use. This appears to be inconsistent with their previously stated position – and of course, what is interesting for us here in Australia is, what implications does this have for the Fair Use Inquiry? (more…)

The BBC has a thoughtful piece on the pending expiry of copyright in sound recordings of a number of major pieces of music.

[T]he message from the industry is one of impending gloom. They are warning that they face one of the biggest challenges to their survival since popular music exploded in the 1960s. In 2013, copyright in the sound recording of the Beatles’ first album expires, as it will for recordings from Elvis Presley, Cliff Richard and other performers of the same period.


Macworld has a short news update reporting that Apple’s iTunes store now sells 3m songs per day, and is approaching the 1 billionth sale mark.

An interesting counterpoint to a story in the same publication 27 months previously, which linked to a blog post by Dave Fester, general manager of Microsoft’s Windows Digital Media Division.

My favourite excerpt from that post is:

iTunes captured some early media interest with their store on the Mac, but I think the Windows platform will be a significant challenge for them. Unless Apple decides to make radical changes to their service model, a Windows-based version of iTunes will still remain a closed system, where iPod owners cannot access content from other services. Additionally, users of iTunes are limited to music from Apple’s Music Store. As I mentioned earlier, this is a drawback for Windows users, who expect choice in music services, choice in devices, and choice in music from a wide-variety of music services to burn to a CD or put on a portable device. Lastly, if you use Apple’s music store along with iTunes, you don’t have the ability of using the over 40 different Windows Media-compatible portable music devices. When I’m paying for music, I want to know that I have choices today and in the future.

As Homer would say, “mmm, retrospection”.

In case you didn’t know already, in October 2005 Stanford University launched a partnership with Apple called “Stanford on iTunes“, which allows the public to download podcasts of Stanford lectures, events, and music free of charge. There are already over 400 programs available, including: Steve Jobs’ 2005 commencement address; various podcasts on technology; academic lectures on literature, philosophy, and music; and news of Stanford. Stanford on iTunes is also being used by Stanford academics to deliver content to their students. There does not seem to be any law-related content yet, but I’ll be looking out for it.

As with any content from iTunes, it’s not necessary to own an iPod to listen — you can also listen via another kind of mp3 player or your computer. The Stanford podcasts are available via an add-on to iTunes itself (meaning that it’s necessary to launch Stanford on iTunes via http://itunes.stanford.edu to download any content). It’s all pretty impressive, and I look forward to listening to some of the podcasts. I only hope that other universities will follow Stanford’s example.

Another Internet company has been accused of cozying up to the Chinese government. The other week, it was Google, which has decided to filter its Google.cn search results, according to categories set by the Chinese government. This time, it seems that Yahoo! may have cooperated with the Chinese government in its arrest of a political dissident (and this may not have been the first time). (more…)

ZDNet had a recent article about RIM winning a patent case in the UK. The action was unrelated to the NTP/RIM litigation, and appears to have been an action by RIM to have an InPro patent revoked, provoking InPro to countersue for infringement. (more…)

Following on my post the other day about courts ordering the release of “private” data about net usage, an interesting case in point is a decision of the Dutch Supreme Court in late November, which ordered Lycos to reveal the identity of a user of one of its websites who had anonymously posted slanderous (or potentially slanderous) allegations against a postage stamp dealer. (more…)

Rothnie very usefully notes that the Cth has released its draft legislative agenda for the Autumn sittings. On the IP front, it includes a few pieces that I had predicted back when I was crystal ball-gazing in January, plus some other stuff of general interest.

It’s worth noting that none of the IP legislation is marked for introduction and passage in the Autumn sittings (ie, none are ‘starred bills’ on this list). Though, these things can always change… Comments on the particular Bills foreshadowed over the fold. (more…)

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