LawFont.com

A colleague asked me the other day: if a US company decides to offer its TV shows for free online, but limits the downloads to US internet users only (blocking out us poor sucker Aussies), are they doing anything illegal?

The question stemmed from Wall Street Journal reports that Disney plans to offer popular tv shows like Lost and Desperate Housewives for free online (see also Michael Geist on this)

I couldn’t think of anything that would make this illegal. Possibly stupid, given the reported levels of TV-show downloading in Australia, but not illegal. But then I thought, well, in recent times, people commenting on this blog, and more particularly on Weatherall’s Law have proven the old blog adage that the comments generated by a post are often more interesting than the post itself – and that commenters collectively are smarter than the blogger.

So help me out here guys. Is there anything illegal going on in that scenario?

As reported elsewhere, the Electronic Frontiers Foundation (EFF) have issued the latest update of their ‘Unintended Consequences’ paper. This one is version 4, and entitled ‘Unintended Consequences: Seven Years under the DMCA‘. (Version 3, issued September 2003, reflected the stories from 5 years). The paper is the output of an ongoing project of the EFF, which:

collects a number of reported cases where the anti-circumvention provisions of the DMCA are been invoked not against pirates, but against consumers, scientists, and legitimate competitors.

The paper was cited in a number of submissions in Australia’s own inquiry into TPM laws and exceptions, and in the final report of the House of Reps Standing Committee on Legal and Constitutional Affairs that did the inquiry.

The report of course details all the well-known stories of use and abuse of the DMCA: the Ed Felten ‘squishing research’ story, the Sklyarov arrest, Lexmark printer cartridges. But more important and more interesting is what’s new, in the last approx 2.5 years? (more…)

Subtitled: Law and, or, versus the Marketers: Evidence in the Cadburys v Darrell Lea case

I’ve been hearing rumours for some time now about evidence issues/problems/disasters in the recently concluded hearing in the case of Cadburys versus Darrell Lea, before Justice Heerey down here in the Vic Federal Court. So imagine my excitement when I realised there were no less than three decisions up on AustLII. They’re really interesting decisions because they say a lot about how law interacts with marketing people, marketing experts in these cases that are all about how consumers behave. Yes, I am a sad IP law geek. Never mind, I’ve come to terms with that. The decisions are:

• Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (which I’ll call the Cadburys Expert Decision). In this decision, Justice Heerey ruled that a whole bunch of expert evidence from a marketing expert was inadmissible;
• Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 364 (I’ll call this one the Cadburys Survey Decision). In this decision, Justice Heerey ruled some survey-style evidence was admissible; and
• Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 386 (the Cadburys Hearsay decision). In this case, Heerey J ruled that some reports that included statements from consumers about how they reacted to purple weren’t admissible to prove the truth of those statements.

I was fascinated, partly because the Judge has chosen to exclude a whole lot of stuff (which must annoy the Cadburys lawyers), and partly because I’m currently teaching Trade Mark Law to undergraduate students. Of course, one thing you spend time talking about in such a course is matters of proof. Since I’ve had to dissect the reasoning for my students, I want to spend a little time in this post putting my thoughts out there. Comments welcome of course! (more…)

Yes, all the copyright experts I know were predicting this result: London’s High Court has ruled that Da Vinci Code author Dan Brown did not infringe the copyright of an earlier book, The Holy Blood and the Holy Grail. The decision seems to affirm a basic fact: copyright does not protect ideas or facts, and an author can draw on ideas, facts, and even fictitious histories in writing new work. A good, if obvious result, it seems to me. And now the pliaintiffs end up with a very nasty costs bill: 85 per cent of Random House’s legal costs, which could top 1 million pounds ($A2.4 million).

The judge clearly did not believe the plaintiffs. According to The Age,

In the end,

• BBC story here
• The Age story here
• The decision has now been published, here

A little while ago I blogged about a case – and more particularly an argument – that is currently before the Copyright Tribunal. The case concerns the fees schools should pay for digital uses of copyright material; the argument concerns whether ‘telling students to view’ a website should ever be a remunerable act. Reports of the case had elicited a fair bit of commentary overseas. My own post elicited quite a lot of email.

The case itself has gone ‘underground’ a little – no new developments to be reported at this stage. But I did want to note a letter to The Australian newspaper, written by CAL CEO Michael Fraser about the case. I can’t find the letter online, so I’ll quote some of the key parts: (more…)

Coverage today of a judgment, handed down yesterday, in the Kazaa proceedings. For those who joined us late (are there any of you?), Kazaa (P2P Software provider) has been sued for authorising infringement of copyright by users of the P2P file-sharing software. Justice Wilcox handed down judgment last year, holding they were liable for authorisation, and an appeal from that judgment was heard in early February. Judgment in the appeal is reserved. In the meantime, however, there’s proceedings going on for contempt, because the trial judge did not stay his injunction pending the appeal. That is, Kazaa was ordered, in the meantime, to take steps to stop authorising infringement. And there’s a live question as to whether they’ve done enough. The judgment raises some really interesting questions about contempt. More, much more, over the fold. (more…)

Something I should have noted last week: the Adelphi Charter was launched in Australia, at an event organised by AEShareNet. To quote from the Charter website:

The Charter, which was formally launched worldwide in October 2005, is really a simple bunch of principles, that sound a lot like common sense – unless you’ve been in the IP debate for a while, in which case it sounds like a foreign language, so far is it from the ordinary parlance. In a way, the Charter advocates a return to simple, important principles in an area that far too often descends immediately to an unhealthy level of detail and qualification. You can see a ‘January 2006’ report here. (more…)

The Internet and blogosphere have been rife, just recently, with a story that first emerged in The Australian. The story went under the headline: ‘Copyright makes web a turn-off’, and came with this as the rather glorious (and alarmist!) first paragraph:

‘Schools have warned they will have to turn off the internet if a move by the nation’s copyright collection society forces them to pay a fee every time a teacher instructs students to browse a website’

What on earth could be going on? Well, I admit it, I’ve been hearing about this for some time, and I really should have blogged it before now. But following comments (and ‘please explains’) from both Michael Geist, and Michael Madison, some commentary on Boing Boing, and by Warwick Rothnie, and the emergence of the story on the Linux Australia listservs, it’s definitely time to weigh in.

Is such a radical argument being made? Oh, yes. The Copyright Agency Limited (CAL), an Australian collecting society isn’t demanding that schools ‘turn off the internet’. But they ARE demanding that schools pay when students are told to look at stuff. claiming that when students are told to look at sites online, that is a remunerable activity, and hence something that should be included in calculating rates that schools pay under the statutory license. The argument is a step in the more immediate question, which relates to what questions are to be put on an electronic use survey. [updated to clarify – Monday, 6 March 2006, 5:30pm]. (more…)

I blogged briefly yesterday about the release of the TPM Inquiry Report; it’s been attracting some international interest, and you can see my previous post for links to that commentary.

I’m still trying to digest the effect of the report. But the AFR has a story today (sorry, subscription only) noting that the report may well lead to conflict with the US. And here’s the kicker: our Trade Minister is apparently meeting US trade officials in Washington DC next week to review the first 15 months of the FTA.

What’s the bet he gets a bit of a pounding on the Report? But what to do? The dictates of Australian politics, and international realpolitik may be in conflict here. (more…)

Well, it’s out. Yesterday, the House of Reps Standing Committee on Legal and Constitutional Affairs released its report on the Review of Technological Protection Measures Exceptions. This is the committee set up to examine what exceptions should be created, as Australia implements Article 17.4.7 of the AUSFTA, which requires Australia to implement stronger anti-circumvention laws, more akin to the US DMCA.

And what a report it is. It has a list of 37 recommendations, many of which are concerned with protecting user interests. More over the fold. (more…)

Attorney-General Philip Ruddock today announced the Australian Law Reform Commission (ALRC) will review Schedule 7 of the Anti­Terrorism Act (No. 2) 2005 and the provisions of Part IIA of the Crimes Act 1914. The Terms of Reference are not yet on the website, but I’ve copied them over the fold. Interesting that the terms ‘freedom of speech’ and ‘freedom of artistic expression’ don’t make their way onto the terms of reference at all, since that was part of the public debate that led to the reference. But certainly ‘any related matter’ is broad enough to cover those issues.

It’s a really tight timetable though – the press release says that the ALRC has to report by May 2006. Doesn’t the government want a real review? (more…)

Let me say that again, counterfeiting is a serious problem. The OECD think so, the Australian government think so – plenty of people think so. I think so. Counterfeiting, at least as it occurs within Australia, has no social value that I’m aware of, and has costs including (a) losses to the trade mark owner (lost sales), (b) the costs entailed by the deception of consumers, (c) indirect losses to the trade mark owner (for example, loss of reputation for quality, loss of ‘prestige’ value), (d) the costs of enforcement incurred by trade mark owners and governments alike, and (e) the ‘social losses’ – lost jobs, lost tax revenue, and lost investment in research and development that may arise as a result of the lost revenue.

I have a great deal of sympathy for trade mark owners who reach levels of desperation, and use hardball tactics, against counterfeiters, particularly ‘repeat offenders’. It must be incredibly frustrating dealing with parties that have little or no respect for the law or the orders of the court. It is clear, from various judgments by the Federal Court judges, that they too have little sympathy, in general, with counterfeiters and importers/sellers of counterfeit goods.

In this context, however, this judgment is a timely reminder to lawyers that they cannot play too hardball in dealing with counterfeiters, particularly counterfeiters who are unrepresented by lawyers themselves – even where the counterfeiter has displayed contempt for the orders of the court. (more…)

As noted in the previous post, last Friday I was in BrizVegas for the ACIPA Copyright Conference.

Naturally, I learned much. But here are two things I really didn’t know, that I should note. (more…)

So on Friday, I’m at the ACIPA Annual Copyright Extravaganza in BrizVegas, and Matt Rimmer is talking about Google and all the court cases against it. And one of the cases is that brought by Perfect 10, suing over the existence of its (nudie wimmin) images in Google’s thumbnail images as displayed in Google’s Image Search function. And I have a bit of a laugh to myself, muttering phrases to myself like ‘total try-on’, and ‘haven’t you read Kelly v Arriba-Soft?‘ Then this morning, I get an email from a reader, with the title ‘Girlie Photos Land Google in Legal Trouble’, with a link to this SMH story. So I’m figuring, try on. Indeed, I shoot back a response – without reading said story – saying ‘looks like a try-on to me’. Finally, this arvo I read the story. And, it transpires, there is an injunction. My reaction: what? Or, as Marty Schwimmer – says, ‘wow’.

Now I’ve read the case. In essence, a preliminary injunction will be ordered against Google (terms yet to be determined) against its copying, and displaying , of thumbnail images of Perfect 10’s nudie wimmin pictures.

The judgment has some amusing footnotes: footnote 4 in particular, where the court notes that Perfect 10 complained ‘thumbnail’ is a misnomer when the image may be 8 x the size of an actual human thumbnail. Oh, puh-lease. Amusement aside, however, the case is interesting – even for us Australians. I reckon most of the discussion in the blogosphere is likely to go to the ‘fair use’ issue: ie, is Google’s creation, and display, of thumbnail pictures ‘fair use’. The court said no – something I thought was pretty interesting. But actually, from an Australian perspective, perhaps even more interesting are some of the parallels with Cooper, on liability for linking to stuff. (more…)

This (in the intriguingly named Jeremy Jones and on behalf of the Executive Council of Australian Jewry v The Bible Believers* Church ) is one of the more unusual. Note in particular the letter attached to the reasons of Justice Conti.

UPDATE: the decision appears to have been removed from AustLII. No idea why. Sorry!