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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…)

The blogosphere is alive over the last few days with reports that the RIAA are saying that format shifting copying, like copying music from a legitimately-purchased CD onto your iPod, is not fair use. This appears to be inconsistent with their previously stated position – and of course, what is interesting for us here in Australia is, what implications does this have for the Fair Use Inquiry? (more…)

Rothnie very usefully notes that the Cth has released its draft legislative agenda for the Autumn sittings. On the IP front, it includes a few pieces that I had predicted back when I was crystal ball-gazing in January, plus some other stuff of general interest.

It’s worth noting that none of the IP legislation is marked for introduction and passage in the Autumn sittings (ie, none are ‘starred bills’ on this list). Though, these things can always change… Comments on the particular Bills foreshadowed over the fold. (more…)

The question in Conor Medsystems Inc v The University of British Columbia (No.2) [2006] FCA 32 (Finkelstein J) was this:

1. if you have two joint patentees
2. one of those joint patentees is a University which claims title through two people claiming to be inventors,
3. but it turns out that those people were not in fact inventors,
4. is the patent liable to revocation, on the grounds that it was not granted to the actual inventors or those claiming under them – even though the other patentee is not affected by the problem?

(more…)

There’s a story in the Australian Financial Review today (sorry, not available online) which notes some comments by the Attorney-General appearing to favour harmony on copyright exceptions, and noting that it seems ‘intrinsically unfair’ if material that would be able to be used under fair use in the US is not so freely useable here in Australia.

Has anyone noticed the recent anti-smoking advertisements showing on television – you know, the ones that talk about how no matter what colour the pack, and no matter whether called ‘mild’, or ‘light’, or ‘low tar’, cigarettes are still toxic? Probably you have – they’ve been around quite a lot lately.

So here’s the question: how many people, do you think, realise that this is corrective advertising, required as a result of some undertakings given to the ACCC by some of the leading cigarette manufacturers in Australia? And why isn’t that part of the advertisement? (more…)

(via Joe Gratz) The US Copyright Office has recently conducted an inquiry into the impact of copyright on use of, and access to orphan works – in essence, works where the owner of copyright cannot be identified. The very long time copyright lasts tends to lead to lots of these orphan works – where copyright owners die, or go out of business. It has often been noted that copyright term extension gave protection that might be useful for a very small proportion of works, but also closed off the possibilities for using, or making available the massive body of these little orphans.

The US Copyright Office has now completed its inquiry, and has recommended a statutory defence, which would limit the availability of injunctions, and limit monetary awards to ‘reasonable compensation’, provided that a person first carried out a good faith, reasonably diligent search to locate the owner before going ahead with use of an apparently orphan work. (more…)

The Attorney-General announced yesterday that the Australian Law Reform Commission will review the Privacy Act 1988 (Cth). The ALRC press release is here. The reference to the ALRC follows the recommendations of two other, briefer reviews which reported in mid-2005. While you might ask why we need another review after those two, the advantages I think are twofold: (1) it is the ALRC, which does ‘active’ review (it doesn’t just wait for submissions), and (2) the terms of reference are pretty broad. (more…)

Yesterday I asked whether anyone knew what was going on in the Kazaa case (you know, the one where the Music Industry is suing Sharman (Kazaa) for providing P2P software and authorising infringement of copyright. In particular, I was asking whether the contempt hearing previously scheduled for Monday 30 Jan went ahead.

My query has been answered! David tells me that the question of contempt has been reserved for the Full Court hearing in the case: an order has been made (available in the ESearch facility of the Federal Court’s database, CaseTrack), to this effect:

So this adds to the long list of things that Branson, Lindgren, and Finkelstein JJ will be pondering in the week commencing 20 February 2006 (soon!).

Ta David!

Gosh, too much IP/Tech news is just never enough, right? There’s heaps going on right now. I’ve commented on the whole patent injunction issue (Blackberry, and eBay v MercExchange) below. But there’s so much more going on, I’ll just post a couple of pointers to more info. Over the fold, more on the many Google stories hitting the news, as well as Ed Felten on DRM. In addition, I note that the Kazaa contempt case (over Kazaa’s decision to block Australian access, rather than alter its software) was listed, as I understood, for hearing in Sydney yesterday. Does anyone know what happened? (more…)

This edition of “What is..?” considers VoIP, otherwise known as Internet telephony or IP telephony. VoIP, which stands for “Voice over Internet Protocol”, refers to the transmission of voice telephone calls over the Internet or any other IP-based network. VoIP systems use packet-switched networks to route and transmit voice calls, rather than the circuit-switching systems used by “traditional” voice telecommunications services.

This article provides an introduction to VoIP, including how it differs from traditional telephony services, and considers some of the regulatory issues raised by providing voice telephony over the Internet. While today VoIP might appear to be a niche product, it is in fact threatening to change the structure of the telephony industry, and is evidence of convergence between the Internet and telecommunications. (more…)

Legal blogs get a mention in today’s Australian Financial Review Legal Affairs section (sorry, registration/subscription required) in the intriguingly titled ‘Superhotties and divas: the blogs rule‘. LawFont gets a specific mention (yay!).

Oh, and we here at LawFont are not the ‘superhotties’ nor the ‘divas’ referred to; nor are the bloggers on the other sites mentioned: Quantum Meruit, and Inchoate (sorry, guys!). Rather, that headline refers to Justice Kirby (‘superhottie of the first order’) and Justice Crennan (‘diva’) (quoting judgments from the famous, or infamous law blog in the US, ‘Underneath their Robes’).

It’s a shame, though, that the only focus of the article is on the ‘gossip’ aspect of legal blogs (or blawgs). (more…)

It is far too hot and sticky this morning in Melbourne to spend vast amounts of time blogging. (hmmm, theory, how does weather affect blogging? More blogging if colder and stuck inside..?).

Four interesting stories today though, on the continuing Copyright and Politics saga in Canada, on the take-down of Wikipedia Germany, on Google Subpoenas and on the question of who owns the news in the US? More over the fold. (more…)