May 2006

A story I’ve meant to post about for a couple of weeks: we know pirates sometimes choose specific products to knock off, but these guys created their own entirely fictitious company, cloning NEC. Raids on 18 factories and warehouses in China and Taiwan revealed that the fake NEC clone had established links to more than 50 electronics factories in China, Hong Kong and Taiwan, and was controlled by entities in Japan and Taiwan. Remarkably, the crooks had not only chosen to clone about 50 of NEC’s existing products, but had gone so far as to design their own new ones, which were described in the article as “generally good quality”. (more…)

At lightning speed, following on a 4 April announcement, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, has introduced Do Not Call Register legislation.

Unfortunately for small businesses, they are prohibited under the proposed legislation from joining the register. Only private individuals will be able to sign up to the Register, which will make it illegal for telemarketers to solicit them. There will be no charge for individuals wishing to be listed on the Register. Small businesses, including those run by individuals from their homes, will not be eligible. (more…)

This slightly disturbing judgment is doing the rounds just now, although it was delivered in February. It was an application for review of a denial of refugee status brought on three grounds. The first ground failed; the second ground would probably have been enough on its own to have the decision set aside.

It is the third ground that is of some interest:

33. In support of ground 3 the applicant complains that the tribunal’s decision was vitiated by bias both apprehended and actual. On the first page of the decision there is a heading in bold type as follows:


34. The explanation for inclusion of the word ooga-booga is that the tribunal member was having difficulty with her spell check program and it was suggested that she type a nonsense word into the decision to see if the spell checker would find it. The tribunal member said that she overlooked the word when proofing the decision.

The Federal Magistrate (Riethmuller FM) disposed of a preliminary submission by the Commonwealth as follows:

36. Counsel for the Minister relied heavily upon the fact that the word does not appear in any of the major dictionaries and points out that it could not be an example of onomatopoeia, because onomatopoeia describes a word that sounds like the thing it is describing. Counsel for the Minister, however, noted that the term Ooga-booga appears to have been adopted as a brand name for a line of Australian clothing. Clothing names are not altogether helpful given other recent brand names such as FCUK and CNUT appear in the marketplace.

Then, he proceeded to sketch some recent and not-so-recent uses of the term. Unfortunately, this one contains an error:

The term has also appeared in web posts, such as the following which appears on the ‘Ask the Myth Busters’ site at < http :// > where it is stated:
I know at one point in the show you’ve stated that you’d like to stay away from the ‘ooga-booga’ myths, meaning I suppose the ones with a bit of mysticism attached to them. …

The website cited [should that be ‘webcited’?] is Slashdot’s science section and has nothing to do with Mythbusters; it just happened to carry a post last November entitled “Ask the mythbusters”, with answers posted in December.

Not all that surprisingly, after noting that “[t]he term appears to have overtones of mysticism and racism in its more modern uses”, Reithmuller FM sent the matter back to be heard by a differently constituted Refugee Review Tribunal on the grounds of apprehended, though not actual, bias:

48. These proceedings involve a claim for refugee status and a protection visa on the basis of a fear of personal harm as a result of political conduct in Burma. The issues are potentially those of life and death for the applicant. It is essential that the public and those involved in proceedings have confidence in the integrity and impartiality of such proceedings.

49. In the circumstances of this case I am of the view that a fair minded observer appraised of the facts and circumstances of the ooga-booga comment would entertain a reasonable apprehension of bias.

It’s famous last words, but the problem is currently under control – one spam comment in the last few days, which is two orders of magnitude less than before. The spammers are using spambots to exploit a weakness in the blogging software for which I don’t think there’s any sure cure given the way it’s currently written. My fixes currently depend on some weaknesses in the spambots, but a smart spammer would be able to circumvent them with some thought.

If you get a “possible spam detected” message when you try to post a comment, please email me and let me know (lawfont at gmail dot com.

One useful tidbit: the spammers have cottoned on to an open redirect script on that doesn’t properly check destination (naughty!). This would be an excellent vector for a phishing attack, as the URL would display in an email client as resolving to (example: If you get a link to adobe in an email, don’t click it.

Just a short note to let you know: we’ve been getting a lot of comment spam over the last few days (and many, many other blogs are experiencing the same). It appears to be part of a concerted new effort by spammers (mostly sellers of dodgy pharmaceuticals), who are starting to find ways around the most common anti-spam protection. Fortunately, the setup we use at LawFont has let only a handful of this trash actually show (about 2%), but very many are getting caught behind the scenes, requiring time and effort to clean up.

I’m going to take action over the next couple of days to try to prevent any more getting through. I think I can do it without breaking anything, but if anyone experiences any problems accessing the site or posting comments over the week ahead, please drop me a line at lawfont at gmail dot com. I also have a few other tweaks and upgrades planned, which I will try to roll out over the coming few months (work permitting).

Is linking to websites without permission against the law? Generally not. But Apple may not be so far off the mark by demanding that comedy website Something Awful remove a link posted to one of Apple’s own internal service manuals. (The service manual is posted at a third website, which was not authorised to reproduce the manual, and not Something Awful itself.)

However, as pointed out on Out-Law, the truth may be that Apple’s complaint has not put the company in a “tricky and potentially embarrassing situation.” Although in general linking does not violate copyright or other applicable laws, links to infringing material may expose the linking party to contributory copyright infringement. In other words, posting the link, while not a direct infringement of copyright, might be deemed to encourage others to infringe copyright by dowloading the infringing material (in this case, the manual). (more…)

The US Supreme Court has unanimously allowed eBay’s appeal regarding the award of injunctive relief for patent infringement, and returned the case to the District Court for further consideration. Justice Thomas wrote the opinion of the court, which was characteristically short and to the point. The Chief Justice issued a concurring opinion joined by Scalia and Ginsberg, J.J., and Justice Kennedy issued a concurring opinion joined by Stevens, Souter and Breyer, J.J.

The procedural background was as follows: MercExchange held a number of patents which it attempted unsuccessfully to license to eBay and MercExchange then sued the two for patent infringement, and succeeded. (more…)

The Attorney-General has now put up the press release on the outcomes of the Australian Copyright Law Fair Use Review. The full press release, along with a ‘FAQs for Consumers’, is available here.

My comments/analysis, posted yesterday, are here.

Update: Another document promised in the press release, the official Government response to the Digital Agenda Review Report (a report published 2 years ago, in early 2004) is now available online, from this page.

Note that according to the media release, ‘a draft exposure Bill including these and other reforms will be released in the near future to enable further consultation with stakeholders.’

The Government, in the budget, has quietly shelved proposals for a resale royalties scheme – despite recent introduction in the UK and a recent private members’ bill. The idea has gone because ‘It would bring little advantage to the majority of Australian artists whose work rarely reaches the secondary art market and would also adversely affect commercial galleries, art dealers, auction houses and investors.’ Hat tip: Warwick Rothnie.

(subtitled: Outcomes of the Fair Use Review Announced).

For the past 12 months, Australia has been going through a major review of its copyright law, and in particular, its exceptions to copyright infringement, with a view to ‘updating’ this material for the digital environment. I note that we are not the only ones: Canada are having an ongoing debate (see Michael Geist on all this), and the UK are having their Gower Review (see here).

Today, the Attorney-General has issued a press release, announcing the results of the review. As yet, the press release does not appear to be online, so I’ll summarise. In essence, the government has decided not to adopt the US ‘fair use’ system – where a broadly worded defence must be assessed on a case-by-case basis. Instead, the government will expand, and amend, existing specific exceptions in Australian law. That makes the amendments complicated, but potentially more certain.

The Attorney-General, Philip Ruddock, is characterising the reforms as:

‘…significant copyright reforms which make our laws fairer for consumers and tougher on copyright pirates.’

According to the AG:

‘These are commonsense amendments which will maintain Australia’s copyright laws as the best in the world for the benefit of our creators and other copyright owners and for hte many Australians who enjoy their creative works.’

I wonder, though. The government does appear to have caved on the issue of the ‘flexible exception’ – the ‘catch all’ provision to except uses not foreseen at the time of this legislation. In my submission, I supported such flexibility, and I’m very sorry to see it apparently not there. I wonder whether in a few years time we will be saying what Bill Cornish (not an IP radical or copyleftist, by any stretch of the imagination) said in his Clarendon Lecture:

‘With rapid technical shifts on the scale of the Internet, there must be a case for giving judges some more general power to excuse at the edges, along US lines. After all, at the centre, legislation is rapidly providing the mainstays of control. As one who tried in 1988 to persuade Parliament to introduce a concept of fair use, I feel now even mroe acutely that our failure was a major rebuff. ‘ (Bill Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (OUP 2004) at page 65)

The press release maintains principles which Ruddock has stated a number of times:

  • 1. That copyright must keep pace with technology and rapidly changing consumer behaviour;
  • 2. that ‘reasonable consumer use of technology to enjoy copyright material’ should be recognised – ‘Australian consumers should not be in a significantly worse position than consumers in similar countries’
  • 3. reforms should not ‘unreasonably harm or discourage the development of new digital markets by copyright owners’
  • 4. The unique Australian system should be maintained – we are not moving to US-style fair use;
  • 5. the law should be updated to tackle rising copyright piracy, and to support the copyright industries.

In summary, the AG has announced:

  1. 2 new private use exceptions – time-shifting and format-shifting;
  2. new exceptions allowing schools, universities, libraries, and other cultural institutions to use copyright material for non-commercial purposes;
  3. new exceptions for people with disabilities;
  4. a new exception to allow use of copyright material for parody or satire;
  5. new enforcement measures

Over the fold, I summarise the announcements, and offer some commentary. (more…)

The Australian Record Industry Association, 2005

‘On a general note, ARIA considers that any amendment to the reproduction right and its exemptions needs to support new business models and the successful roll out of digital formats and online services. The industry considers that the market requires music products that are tailored to consumer needs and expectations, including home copying. This can and needs to be achieved through product design and technology, not through legislative amendment which distorts the market response to consumer demands.’

And they go on to elaborate:

  1. It is the goal of record companies, both internationally and in Australia, to support the introduction of new options and business models offering different services and options to consumers at different price points.
  2. in the short term, technological developments will enable consumers to make a reasonable number of copies of recordings under licence from the copyright owner;
  3. in the short term, technological developments will provide copyright owners with the means to limit uncontrolled copying of recordings;
  4. in the short term, technological developments will provide to consumers the flexibility that they are seeking whilst ensuring that, at the same time, Australia continues to be able to meet its obligations under various copyright treaties;
  5. an abrogation of the rights of copyright owners and creators cannot be justified on the basis that because technology allows private copying to occur (and has done so for
    some time), such copying has assumed the status of a “right”;
  6. there is no problem, because no one has ever been prosecuted for private copying, and while ‘that does not mean that the copyright owners condone that private copying, it clearly demonstrates that copyright owners have not sought to utilise remedies available to them under the Copyright Act to address the problem.’

Notably, ARIA rejected a private copying levy as an idea.

United Kingdom, BPI, 2006:

‘The British music industry is to recommend to the Government that consumers be allowed to legally copy music without fear of prosecution.

The BPI, the body that represents British record companies, believes copyright on CDs and records should be changed to allow consumers to copy music if it is for personal use. Currently, it is technically illegal for anyone to copy a CD onto their computer for the purposes of downloading music onto their own portable music player.

In its submission to the Gowers Review – the independent review body set up by the Treasury to examine the UK’s intellectual property framework – the BPI has asked for the issue of this area of music copyright to be addressed.

Worth noting that it’s not clear from this story whether BPI are recommending a statutory levy of any kind. But still, it’s a notable contrast.

United States, RIAA, for a very long time:

If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that’s great. It’s your music and we want you to enjoy it at home, at work, in the car and on the jogging trail.

So here’s what I don’t get. Why is the Australian position so very different? Is it because here, unlike, say, Canada, where at least there’s been some action in the music industry recently, particularly in terms of the representativeness of CRIA etc, there is so little outcry against the ridiculous position under Australian law? What do people think about this?

And when I write “Apple”, whom do you think of? The computer maker? Thought so. Today, Mr Justice Mann found for Apple Computer, Inc. in the lawsuit between it and Apple Corps Ltd (the Beatles). My intro is possibly a little misleading, however, as the case was not directly about the classical trade mark concerns of confusion between two particular marks.

Rather, it concerned the interpretation of a settlement agreement between the two parties executed in 1991 in order to avoid some of the sporadic conflicts the two had previously had in exploiting their similar marks. However, notions of applications and use of trade marks do surface in construing just what that agreement meant. (more…)

You might recall some comments I made, a couple of weeks ago, on Justice Heerey’s evidentiary rulings in the passing off litigation between Cadburys and Darrell Lea. Justice Heerey limited the presentation of certain survey and expert evidence. The judge’s ruling was informed by a policy against allowing infinite expansion of evidence in a case dealing with straightforward consumer products. The judge considered that:

‘Such evidence shouldn’t be admitted because of the rules of law above, which are based on sound policy: avoiding overcomplicated, expensive trials with lots and lots of evidence and cross-examination and warring experts. The judge is clearly concerned that admitting the evidence in this case will lead to it being expected in all of these types of cases.’

My clever RA Aaron Newell has pointed me to a case that perhaps indicates that Justice Heerey had a good point here: a recent Canadian decision concerned with trade mark issues – amongst them, dilution style harm. (more…)

According to the Copyright Tribunal – 22.5c per subscriber per month is what it is worth. That is how much Pay TV channels will soon be ordered to pay copyright owners (through their collection vehicle, Screenrights) for the privilege of retransmitting free to air channels to their subscribers. The decision, handed down 3 May, has already been reported in the Sydney Morning Herald and in the Australian.

The flavour of the story in the media has been interesting – the Australian pitches it as ‘nothing comes free’ for Pay TV; the SMH is even more blunt. Under the headline ‘Pay TV hit with copyright fee’ it comments that:

”PAY TV operators, including Foxtel, Optus Vision and Austar, will now have to fork out $3.5 million a year for retransmitting the five free-to-air channels on their platforms’

But there’s a little more to it than that. As the SMH notes, Screenrights had initially asked for $10 per subscriber, per month. Screenrights in their final submissions argued that an amount of $2.50 per subscriber per month was ‘conservative’. And as the Australian also notes that ‘The pay-TV networks, including Foxtel, Optus and the regional network Austar, argued they should pay no more than 20c per subscriber per month.’

Hmmm: so Screenrights thought $2.50 was conservative; the upper bound of the Pay TV people was 20c. The result was 22.5c – a smidgeon above what the Pay TV people had argued (admittedly, the Pay TV people were arguing that the ‘lower bound was zero’, based on past arrangements). While Screenrights has ‘welcomed‘ the decision, my guess would be that they would view this as a pretty low fee. (more…)

Napster is apparently changing its business model in an attempt to turn a profit. They will now allow a user to play songs five times before they are required to buy it or become a Napster subscriber.

It’s not a bad idea, but it does not address the fundamental problems with subscription models, that I have previously commented on. (more…)

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