March 2007

BDW has alerted me to the fact that:

‘The NSW Legislative Council Standing Committee on Law and Justice has released their final report on the inquiry into unfair terms in consumer contracts. This is likely to have a direct impact on users of internet, mobile phone and cable television services, amongst others. … The Committee has recommended creating a taskforce within the NSW Office of Fair Trading to develop and implement a scheme for the protection of consumers in relation to unfair terms in consumer contracts. The scheme will be based on the Victorian model.’

I think this is an interesting development, but it also puts me in mind of something that Mark Lemley points out in a new paper – that it’s not just consumers who are affected by so-called ‘unfair contracts’:

‘The rise of terms of use has drawn a great deal of attention because of the mass-market nature of the resulting agreements. Terms of use are drafted with consumers or other small end users in mind. Commentators – myself among them – have focused on the impact of this new form of contract on consumers. But in the long run they may have their most significant impact not on consumers but on businesses. … Businesses … are presumed to know what they are doing when they access another company’s Web site, so courts are more likely to bind them to that site’s terms of use. Sophisticated economic entities are unlikely to persuade a court that a term is unconscionable. And because employees are agents whose acts bind the corporation, the proliferation of terms of use means that a large company is likely agreeing to dozens or even hundreds of different contracts every day, merely by using the Internet. And because no one ever reads those terms of use, those multiple contracts are likely to have a variety of different terms that create obligations inconsistent with each other and with the company’s own terms of use. ‘

Crikey today is reporting that:

In a move thought to be unprecedented in global sport, photographers from international news agencies like Reuters, AFP, AP and Getty Images have been locked out of AFL games for season 2007. Their work has been replaced by an agency created by the AFL to manage the League’s press photography. Geoff Slattery Publishing, publishers of the AFL Record, has the contract to manage AFL photography. But the scheme has raised serious questions about press freedom and the right of news organisations to report on public events.

So this is bad, I’d agree, for all kinds of reasons that Crikey explores. But all I can think is – what a great opportunity for amateur photographers to take and sell photos to the press! Citizen journalists unite.

UPDATE:Crikey have another story about the AFL move today – which points out attempts by others – in particular, FIFA – to do something similar. Apparently, so far attempts to do this kind of thing have led only to tears (and rapid backdowns). I await the next development…

And another thing, about the November government draft of a new law for internet censorship (see my previous comments here and Pete Black’s comments here).

One thing that is fundamentally wrong with the government approach is the ‘cover everything, create specific exemptions’ approach. The government proceeds by creating a default position that everyone doing anything online (even vaguely related to commercial life) is covered, and then creates a long list of exemptions so that certain kinds of sites are free from regulation.

Three serious problems with this approach:

  1. The obvious problem: new kinds of sites are automatically censored. Since we don’t know what might happen online next, why make the default regulation? Why not single out the specific things you want to cover?
  2. The ‘bob each way’ approach: for most exempt categories, the definition states that the site must fit the definition AND ‘comply with other requirements in the regulations’. This would enable the government at any time to impose additional requirements on, say, user-generated sites or search engines – by regulations, which can only be DISALLOWED, not amended, by Parliament. Ick.
  3. Lawyers’ paradise. I foresee many arguments by people saying they fit within categories. That’s what always happens when you have a specific list. Again, ick.

Oh, and here’s a question. do you think massive multiplayer online games are covered by this regime?

Ah, censorship. What is it about censorship that brings out the silliness in legislators? Why is it that the idea of censoring the Internet gets people so excited they forget to work out whether the laws are at all sensible?

Crikey has today leaked a November draft proposed Australian Internet censorship law: the Communications Legislation Amendment (Content Services) Bill 2006. I’ve had a look. It’s unbelievable.

Crikey report that the bill has been redrafted. It had better be. Better still would be to forget it altogether. Because this draft doesn’t pass the laugh test. Really. It is inconsistent with fundamental values like freedom of speech and freedom of information; it is broad, draconian, and wouldn’t work, it is completely out of step with the way the Internet works (it seems to require pre-emptive monitoring of content by hosts before it even goes online). I think I’m back in the year 2000 – the last time this same government tried to write an Internet censorship law. More on why this draft is so bad over the fold. [update: Pete Black has also commented, along very similar lines to me, here]

Interesting story hitting the press today on the use of Australia’s notice-and-takedown provisions under the Copyright Regulations.

Volunteer-type hosting service had to take down this site (now on an overseas mirror), after getting a letter from the NSW Minerals Council, alleging infringement of their copyright in the material on this website. More detail on indymedia.

Apparently, despite the requirements under the Copyright Regulations to “insert sufficient information to enable the carriage service provider to identify the copyright material in respect of which the infringement is claimed”, the lawyer letter didn’t attempt to actually state what copyright existed in – telling the ISP to do the identification:

“Content in which our client owns copyright may be viewed on it’s website, We ask that you compare our client’s website to the offending websites referred to above. On comparison, you will see the copyright infringement issues that our client has with the abovementioned websites.”

I’m troubled by this, and not just because I’m pretty sure it is NOT the intention of the regulations that lawyers who write these notices outsource the identification of copyright material to the host or ISP. (“Look at the website”??? please).

I’m concerned because this isn’t one of those cases that notice-and-takedown was meant to be provided for: cases, basically, where someone has put up shamelessly infringing material online with no apparent social benefit. The notice here is aimed at some speech which is pretty clearly political, something which at least arguably would be protected under fair dealing defences of criticism and review and/or parody/satire. This is not why the Safe Harbours were put in there, and arguably, it’s an abuse of the process.

Maybe we need an Australian version of Chilling to track this kind of thing.

UPDATE: Rising Tide, the people behind the website, have issued a counter-notice. Their press release is here.

UPDATE 2: Pete Black has commented. Note also that if you’re a barrister looking for something to do with your time, RisingTide are looking for some pro bono assistance…