April 2006

As reported elsewhere, the Electronic Frontiers Foundation (EFF) have issued the latest update of their ‘Unintended Consequences’ paper. This one is version 4, and entitled ‘Unintended Consequences: Seven Years under the DMCA. (Version 3, issued September 2003, reflected the stories from 5 years). The paper is the output of an ongoing project of the EFF, which:

collects a number of reported cases where the anti-circumvention provisions of the DMCA are been invoked not against pirates, but against consumers, scientists, and legitimate competitors.

The paper was cited in a number of submissions in Australia’s own inquiry into TPM laws and exceptions, and in the final report of the House of Reps Standing Committee on Legal and Constitutional Affairs that did the inquiry.

The report of course details all the well-known stories of use and abuse of the DMCA: the Ed Felten ‘squishing research’ story, the Sklyarov arrest, Lexmark printer cartridges. But more important and more interesting is what’s new, in the last approx 2.5 years? (more…)

Subtitled: Law and, or, versus the Marketers: Evidence in the Cadburys v Darrell Lea case

I’ve been hearing rumours for some time now about evidence issues/problems/disasters in the recently concluded hearing in the case of Cadburys versus Darrell Lea, before Justice Heerey down here in the Vic Federal Court. So imagine my excitement when I realised there were no less than three decisions up on AustLII. They’re really interesting decisions because they say a lot about how law interacts with marketing people, marketing experts in these cases that are all about how consumers behave. Yes, I am a sad IP law geek. Never mind, I’ve come to terms with that. The decisions are:

I was fascinated, partly because the Judge has chosen to exclude a whole lot of stuff (which must annoy the Cadburys lawyers), and partly because I’m currently teaching Trade Mark Law to undergraduate students. Of course, one thing you spend time talking about in such a course is matters of proof. Since I’ve had to dissect the reasoning for my students, I want to spend a little time in this post putting my thoughts out there. Comments welcome of course! (more…)

Yes, all the copyright experts I know were predicting this result: London’s High Court has ruled that Da Vinci Code author Dan Brown did not infringe the copyright of an earlier book, The Holy Blood and the Holy Grail. The decision seems to affirm a basic fact: copyright does not protect ideas or facts, and an author can draw on ideas, facts, and even fictitious histories in writing new work. A good, if obvious result, it seems to me. And now the pliaintiffs end up with a very nasty costs bill: 85 per cent of Random House’s legal costs, which could top 1 million pounds ($A2.4 million).

The judge clearly did not believe the plaintiffs. According to The Age,

‘[Justice] Smith said it was not for him to decide whether Baigent [one of the plaintiff authors] was “extremely dishonest or a complete fool”, but called him a “thoroughly unreliable witness”.’

In the end,

‘It would be quite wrong if fictional writers were to have their writings pored over in the way DVC (Da Vinci Code) has been pored over in this case by authors of pretend historical books to make an allegation of infringement of copyright’

Australian Minister of Communications Helen Coonan today announced the formation of a National Do Not Call Register. The Register, which is due to be up and running by early 2007, will allow individuals and small businesses to opt out of receiving unsolicited telemarketing calls. There will be no cost for listing in the Register.

Enforcement of the Register, which will apply to all telemarketers operating in Australia (and overseas telemarketers representing Australian companies), will include warnings, fines, formal directions, and financial penalties. The Register will not apply to organisations that may have public interest objectives (ie, charity groups and persons undertaking social research), nor to companies with an existing commercial relationship with the individual or small business.

The cost of setting up the Register is estimated to be A$33 million, with the Government providing A$17.2 million, and the remainder to be provided by industry.

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