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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?

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…)

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…)

About a month and a half ago – on 14 May – the Attorney-General issued a press release, announcing proposed new exceptions to copyright: the outcome of a long review that commenced approximately 12 months before (by the way, check out the text in the URL on that last link – it’s deliciously ironic).

I know that the press release was some time ago, and I know, too, that the draft legislation is not out yet. But I’ve been thinking about the press release a bit, lately, and in particular, the way it would seem to indicate that this exception will look. I thought I’d share some of those thoughts. (for other thoughts, see the Australian Copyright Council’s response, posted here). (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?

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…)