June 2007

While Google is currently the dominant player in the Internet search engine business, that doesn’t mean that there is not a great deal of activity among companies vying for a piece of the action. As was recently reported, even 1% of the global search market represents quite a bit of money.

Not all search engine companies use the same strategies to capture market share, however. (more…)

Google has a new public policy blog, and in an interesting post, Andrew McLaughlin (their Director of Public Policy and Government Affairs) notes a story now circulating – that Google has been having

fairly quiet discussions …with various parts of the U.S. government, including the Departments of State and Commerce, the Office of the U.S. Trade Representative, and various House and Senate committees.

in which Google has been making the case that ‘For Google, it is fair to say that censorship constitutes the single greatest trade barrier we currently face’, and that:

Just as the U.S. government has, in decades past, utilized its trade negotiation powers to advance the interests of other U.S. industries, we would like to see the federal government take to heart the interests of the information industries and treat the elimination of unwarranted censorship as a central objective of our bilateral and multilateral trade agendas in the years to come.

This has of course elicited some of the expected critiques – ‘how can Google say this when it actively collaborates with censorship in foreign countries’. Personally, I think that’s a pointless and ill-considered criticism – Google might well be censoring now – because, oh, it has to under the laws of the countries where it operates. That doesn’t prevent it actively trying to break down the censorship rules so it can stop complying with them.

I think there’s more serious criticisms that need to be borne in mind by Google when it makes this argument about injecting its concerns into bilateral trade negotiations. As someone who is based in Australia – a country that has had a bilateral trade negotiation with the US – I find the idea of the US injecting even more policy issues outside immediate trade issues into its FTAs a bit offensive. I know, from the Australian experience, what this means. And that is, that good as the intention might be, it is likely to become seriously perverted by the USTR and trade negotiation process. I hope (in the spirit of constructive criticism) that Google gives serious thought to whether this can work as it might hope, even in the most hospitable environment. (more…)

Hew Griffiths was sentenced to over 4 years in gaol on Friday for criminal copyright infringement (the US court has recognised time served already in Australia challenging extradition; this means he will spend about 15 months in prison in reality). Hew Griffiths was extradited to the US from Australia in February to face a US court – even though he had never previously set foot in the country.

Earlier commentary on the case can be found at Larvatus Prodeo, Catallaxy, Legal Soapbox (here and here), Inchoate, and IPWars – and even the IPKat, as well as the mainstream media (here and here). Malik and the House of Commons have commented on the endgame, as has Club Troppo. It’s interesting to read the commentary: a lot of people really are quite torn over this one. Griffiths did some pretty serious stuff in terms of copyright infringement – about as serious as you can imagine it getting. Nevertheless, is extradition appropriate/proportionate?

Today, I have a short comment in Crikey. More over the fold. (more…)

You’ve probably never heard of Fyodor, or insecure.org. I expect you will over the next few days as the mainstream media begins to pick up on a Harry Potter story. Fyodor is a very gifted programmer who created an extremely valuable security analysis program called nmap over 10 years ago, and has been maintaining and improving it ever since. nmap is one of the most widely-used vulnerability scanners, and was even featured in the second Matrix movie (pictures are at the bottom of the insecure.org home page. Geek trivia: the versions of nmap, the target computer system, and the actual vulnerability are historically accurate.)

What does this have to do with Harry Potter? Well, Fyodor also hosts a number of extremely useful computer security discussion lists on his site. And on one of those, a day ago, someone posting as “Gabriel” posted a message entitled “Harry Potter 0day”. (“0day” is jargon for “zero day”, and is used to denote a file — originally software, but more commonly now films or music — that is released onto the underground scene on the day of its public release. This kind of piracy gives bragging rights to the crackers.) In the post, Gabriel claims to give spoilers as to the ending of the upcoming Harry Potter and the Deathly Hallows book. (more…)

Just prior to the last election campaign, there was a big debate about patent evergreening, in which IP academics and patent lawyers around the country nearly had heart attacks as Opposition leader Latham and PM Howard debated the finer points of patent law in the heated atmosphere of Parliament. Too much excitement!

Part of the debate was about whether provisions in AUSFTA, requiring linking of marketing approval mechanisms for drugs (ie, the Therapeutic Goods Administration processes) and patents would cause or contribute to or enable ‘evergreening’. Latham coined the immortal phrasing ‘bodgy patents’ to explain this.

Well, I know this is all water under the bridge now. But I think it’s worth point out that now that the US has a democrat-dominated Congress, there are some changes happening in trade policy. Specifically, for the agreements still awaiting Congressional approval (Peru, Colombia, Panama, Korea), there’s been an agreement reached between USTR and the Democrats in Congress to change the FTA text – specifically, to introduce more flexibility in the patent provisions (as well as some labor/environmental stuff).

You mean all that angst was for nothing? (more…)

Readers of my old blog, Weatherall’s Law, or LawFont from last year may recall that I engaged in a little personal crusade against the re-writing of the criminal provisions that occurred via the Copyright Amendment Bill (see here, here, here, here and here for starters, or have a look at my submission and supplementary submission to the Senate Committee).

At the time, of course, I knew I wasn’t spouting a new line – commentators of all stripes have expressed scepticism about the use of criminal enforcement in relation to IP. So I thought I would just point you all here, where William Patry comments on criminalisation of copyright, quoting Sir Hugh Laddie to similar effect.

By the way, it’s notable that despite the fact that the new criminal provisions in the Australian copyright law, and the capacity to issue on the spot infringement notices, have been around now for nearly 6 months, the government does not appear, so far as I can ascertain, to have yet drafted or publicly consulted on guidelines for their use. So much for the (government-led) Senate Committee’s Recommendation Number 3.

It suddenly occurred to me that there might be a better way of verifying my impression that afr.com would have lost readers as a result of its move from an html-based subscription model to the awful Flash-based one I wrote about recently. (Others seem to have similar opinions – see eg this well-written post at ExplodedLibrary bunker.)

Enter Alexa, a site for measuring web traffic. Now it’s not perfect, but any systematic under/over counts or reporting biases should remain relatively constant over time — meaning that somewhat meaningful comparisons can be drawn against its own figures from different time periods, even if they cannot necessarily be drawn against data from other statistics sites.

Without further ado, here is the 5 year graph of traffic to afr.com as measured by Alexa. That crater in mid-2006 corresponds, unsurprisingly enough, with the introduction of AFR Access.

afr.com views over 5 years

(permanent link)

A comparison against other Australian and international news sites is also instructive. (more…)

Judge Posner posted a very insightful entry on the Becker-Posner blog concerning family control of voting stock in media companies, a topical subject given Rupert Murdoch’s overtures to the Bancroft family regarding the Wall Street Journal.

Of interest is this quote, which shows how well he “gets” the internet: (more…)

I mentioned Ben Quilty and Caroline Rothwell in my last blog. Qulity is Australian and Rothwell is English but lives and works in Australia. They are both in Grant Pirrie’s stable at the moment. Their works are interesting…Quilty’s latest is Pride and Patriotism. Rothwell’s The Law of Unintended Consequences

Back in 2005, the Commonwealth Attorney-General described the national security legislative framework as an ‘unfinished canvas’. The ‘unfinished canvas’ metaphor still has currency. Why? Because it’s still not finished. See the latest (courtesy of the Bills’ List of the Senate). Not quite the Ben Quilty style strokes of the 2005 canvas…perhaps a little more in the style of Caroline Rothwell(more…)

Well, well, well: those of us who, in the fine tradition of lawyers everywhere thinking their own area is sexy, had decided that the High Court would take any old IP case that sounded vaguely interesting, will have to revise their views.

Not only did the High Court refuse special leave in the BP colour trade mark case, but now they’ve refused special leave in the Cooper case on authorisation liability (transcript not yet available).

This one, I have to admit, surprised me. I was very critical of the Full Court judgment when it came out late last year. Now we are stuck with it. Despite the fact that it is arguable that Australian authorisation liability for copyright infringement is now more restrictive (ie, more copyright-owner protective) than elsewhere. Certainly Canada is less restrictive – there, our caselaw was explicitly rejected. Arguably things are less restrictive in the UK, too. Interestingly, our law is more copyright owner protective even than the US: and it’s not just me who thinks so: see this paper by acknowledged experts Sam Ricketson and Jane Ginsburg).

The folks over at strangemaps have posted an interesting map of the USA, matching the gross domestic product (GDP) of each individual state with a country with a similarly-sized GDP.

Strangemaps rightly points out that the map presents a somewhat distorted picture; while the state/nation state GDP levels may be similar, the corresponding population levels are not. This means that similar GDP figures do not necessarily indicate similar levels of wealth per capita in the US states and countries compared, although it does rank the size of the economies of US states and the corresponding foreign countries.

The rest of strangemaps is worth a look if you have a moment–there are some very interesting maps there. One of my recent favourites is the Online Communities Map.

Those of you who have tried to post any comments recently may have noticed that I have added an anti-spam “captcha” feature (type into a box the words you see generated onscreen). It’s a shame it’s necessary, but the spammers are getting more sophisticated.

The good part is that the captcha is part of a program currently being used to digitise books from the Internet Archive and make them freely available. Kudos to the authors from Carnegie Mellon University.

The Fairfax press reported a couple of weeks ago that TiVo, the “time-shifting digital video recorder” is coming to Australia in early 2008 courtesy of a deal struck with Channel 7. On the surface, this seems like a good thing for everyone – that is, everyone who cares about TV- competition between service providers, choice, flexibility and further integration with on-line media services and sources. These digital TV services are evolutionary and it’s good that they seek to move their audiences beyond the one-way flatscreen TV experience. Still, I’ll be interested to see how it pans out, given that the wrangle over the electronic programme guide (EPG) has been foreshadowed, including the “one EPG to rule them all” argument being raised yet again…now the EPG debate has been around for a while, both here and abroad, in respect of access to the subscription tv EPG…hmmm, interesting times ahead…

Judge Eduardo Robreno of the United States District Court for the Eastern District of Pennsylvania has handed down a very interesting judgment dismissing two motions by Linden Labs (the makers of Second Life) in a lawsuit brought by lawyer Marc Bragg.

Bragg signed up to Second Life in 2005. He said he was induced into “investing” in virtual land by representations made by Linden and Rosedale in press releases, interviews, and through the Second Life website, and paid real money as “tax” on his virtual land. (more…)

Next Page »