July 2006

Quite literally.

Let’s face it: when someone decides to issue a cease and desist against children’s party clowns, you just have – um – laugh. I can just see it now: instead of the cream pie, clowns will splat lawsuits in each others’ faces. Oh, and instead of jumping in and out of a little Mini Minor car, clowns will get in and out of a large lawyers’ briefcase…. oh, enough already. It’s Friday.

Well well well. All the news today reports that Kazaa has settled with the American Music Industry, agreeing to pay $US115 million ($A151 million) and convert to a legal business model with licensing arrangements to be negotiated with record labels (see The Age here, Washington Post here; Techdirt here)

Now I can’t help but wonder whether we have several Federal Court judges who, having spent quite a few days in February hearing the matter, and perhaps a bit of time writing a judgment, are now a little deflated.

Guess we won’t be getting a Full Federal Court view on what constitutes authorisation of copyright infringement. The rather spare reasoning of Justice Wilcox will stand.

Sigh. And I was so looking forward to dissecting another big copyright judgment or two.

Update: more news from Techdirt: apparently some of the settlement is being paid by the Kazaa founders.

Update 2: I’m told by a reader that I shouldn’t despair (yet). As one reader pointed out, the court can still publish reasons where there are ‘principle[s] of general importance’, and an appeal can only be discontinued with leave of the court (which presumably could be refused). And in any event, the appeal in Cooper – another copyright case also raising authorisation issues – is due to be heard in early August…

Update 3: I should have noted before: Peter Black on Freedom to Differ has also commented.

Update 4: First thing this morning: come in to work to find all the newspapers and US blogs reporting the Kazaa settlement. 8:24am: blog the story on Weatherall’s Law, then LawFont. 10:30am: receive notice from the Australian Copyright Council regarding the settlement. 4:48pm: receive Freehills Intellectual Property Update notifying me of the settlement. Observations: (a) the ‘more traditional’ sources of IP news (law firms, Copyright Council) are pretty quick these days; (b) do you think blogs – as part of the ‘always on’ news and information cycle – have anything to do with this? (c) I’m going to be out of a blogging purpose if law firms become more like blogs… won’t that be good!

Update 5: more rather amusing commentary on the settlement from Geeklawyer, and sensible points from Technollama – like, this is hardly a victory, right?

Warner Bros. has joined a number of other television broadcasters in providing some of its programming for sale on Apple’s iTunes. A number of networks, including Fox (owned by News Corp.), ABC (Walt Disney Co.), NBC (Universal), CBS, and MTV (Viacom Inc.), along with Warner Bros., together offer more than 150 television shows for US$1.99 per episode. The shows may be viewed on a computer or a video iPod. And what’s really interesting — it’s possible to subscribe to a current season of a television show (and not just repeats). (more…)

The SMH is carrying an article quoting a telemarketing industry spokesman as saying that many Australian companies have chosen not to renew contracts with Indian call centres after July 1. The proffered reasons are fear of a consumer backlash, and the forthcoming introduction of the register.

Choice quote: “A lot of organisations realised the damage being done to their brand by this form of telemarketing, especially in telecommunications.”

From IP Australia’s news service:

‘The Australian Institute of Criminology (AIC), Australia’s pre-eminent national crime and criminal justice research agency, is currently conducting a study in relation to intellectual property crime and enforcement in Australia. As part of this research, the AIC is collecting data on the extent to which intellectual property (IP) crime exists and its impact. The research will identify options for the Federal Government’s response to piracy and counterfeiting in the future.

If you wish to assist in this research by providing your informed views on the type, amount and impact of IP crime in Australia, we invite you to contact Alex Malik a consultant researcher with the AIC by August 4, 2006, at alex.malik@aic.gov.au In your note, please tell us about yourself and your organisation, and explain why you believe you may be able to contribute to this research.

It appears that all they want to know about for the moment is who you are and what information you have: presumably if you want to provide information, you’ll have some time to do it after this rather short deadline…

Readers may recall that one of the big issues in Australia’s FTA negotiations with the US was the issue of drug pricing, the pharmaceutical benefit scheme, and drug listing. This was one issue where the Australian government stood its ground – to some extent (of course, there’s plenty of debates about whether the ground they gave was too great – see Peter Drahos’ work on this generally, particularly this working paper for the Evatt Foundation).

Well, now it’s apparently Korea’s turn. (more…)

One of the things I said just recently, in the Unlocking IP Conference at UNSW, was that one issue for Creative Commons, in seeking acceptability for use in the public sector, is the rhetoric. I argued that sometimes, in their eagerness to convince ‘the masses’, Creative commons mateiral has a tendency towards rhetorical excess and a ‘boosterism’ that isn’t a comfortable fit with either the public sector, or, indeed, with Australian culture more generally.

I wonder if other people agree with this point? (more…)

There’s something rather interesting going on at the Productivity Commission here in Australia. The Commonwealth Government has asked the PC to undertake a research study on public support for science and innovation in Australia. Now, I’d heard some muttered cynical comments that one of the purposes of this particular inquiry might be to give government some reasons to reduce public funding for innovation (I’m not sure why giving a review to an independent body like the PC would further this kind of aim: I’m just reporting scuttlebut here).

But there’s some interesting submissions going up now, that make for interesting reading if you are interested in innovation and the drivers of innovation. (more…)

The machinations over the Cadbury claim for the colour purple go on and on. Now that the costs order has been handed down, and the first instance decision is all done and dusted, we have news that Cadbury has appealed Justice Heerey’s decision that Darrell Lea did not do any ‘passing off’ when it used the colour purple (hat tip: Dale Clapperton). (more…)

IPRIA and the Melbourne Business School have an event coming up which would be of interest to readers of this blog: David Levine and Eric Von Hippel will be giving a seminar on Intellectual Property and Innovation: A Different Perspective. It’s all happening on 11 August. More details over the fold. (more…)

Media regulation in Australia will be dramatically changed over the next year. Senator Helen Coonan announced the adoption of a new media framework on 13 July, including a substantial strengthening of media regulator ACMA‘s powers and the relaxation of cross-media ownership restrictions. (more…)

The Full Federal Court has handed down its decision in the case of Grant v Commissioner of Patents. I’ve blogged about the case before (here, and here): in essence, it’s about patentability of a ‘business system or method‘ – where the particular business system or method is a legal scheme, to protect assets in the case of bankruptcy. Something that got a little controversial recently, of course, when the Supreme Court decided to punt in a case that might have dealt with the issues – see here. Warwick Rothnie’s already blogged in some detail about the decision – but I have a couple of quick comments. (more…)

It’s time for another post on the OzDMCA – that is, the forthcoming Australian law implementing Article 17.4.7 of the Australia-US Free Trade Agreement – an article based very closely on the (in)famous US law, the DMCA. I’m prompted to write by a recent Slashdot thread on this, as well as the recent Linux Australia campaign seeking to highlight the dangers of a DMCA-style law in Australia. The Linux Australia pages have a general explanation of the issues on DVDs (see iownmydvds.org here), and on some of the issues in music (see iownmymusic.org here).

I’m also prompted by the fact that it is now July, 2006, and we have not seen any exposure draft of the legislation. Given the timeline, I think we can only assume that either (a) the Department have decided to consult only with some limited set of stakeholders, or (b) that any consultation is going to be extremely brief.

Now, as I’ve said numerous times before (see my submission, 2 years ago, to the Senate Select Committee, and my submission, last year, to the LACA Inquiry) – anti-circumvention law is hard. It also has really strong potential to have nasty effects if implemented badly. And the risks of bad implementation are high, because the AUSFTA text is really problematic – it has a structure that has some ‘lamentable and inexcusable’ flaws (the quote is from LACA).

I’ve been wondering for some time whether we need to enact laws that look like the DMCA. I think there are areas where the AUSFTA text does have space to do things that are sensible.

So in this post, I’m going to outline two things Australia could do in implementing the OzDMCA, which would reduce its bad effects. (more…)

For the first time, the Court of First Instance has annuled the European Commission‘s approval of a company merger. In January 2004, Sony and BMG notified the Commission that they intended to merge their worldwide music recording businesses (except for Japan) into a joint venture. In July 2004 the Commission approved the joint venture in Europe, and SonyBMG started business.

This week, in an action brought against the Commission’s decision by Impala, an organisation representing 2,500 independent music publishing and record labels, the CFI ruled that the Commission had failed to satisfy the legal requirement that the combined music recording businesses of Sony and BMG would not come to hold monopoly power.

What this decision means for the joint venture is unclear–reports state that Sony and BMG will need to lodge a new notice, and the Commission will undertake a new analysis of the transaction. But the conclusion reached could be the same. If it is not, it will be interesting to see how a joint venture that has been operating for two years will be unravelled.

Australian reality television show Big Brother has sparked a debate on the regulation of Internet content. Earlier this month (see here and here), an alleged case of sexual assault caused two contestants to be taken off the reality television show. (See “2006 sexual assault controversy” on Wikipedia’s Big Brother entry for further details.) While the behaviour was not broadcast on television, it was shown live on the show’s Internet feed, provoking outrage from politicians, and causing Communications Minister Senator Helen Coonan to issue media releases addressing the incident (2 July and 3 July).

I’m not going to weigh in on the appropriateness of content broadcast on reality shows or on the Internet, or the ethics of such shows generally, nor will I discuss whether certain conduct actually occurred on the Big Brother set. Plenty of that is being offered, from Opposition Senator Stephen Conroy (3 July and 5 July) to Germaine Greer. Instead, I’m going to consider why the content shown on the Big Brother website did not break any laws, and discuss the contemplated regulatory response. (more…)

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