LawFont.com

One issue that is knocking around in Australia at the moment is the scope of the concept of ‘patentable subject matter’. In particular, there has been a debate – and differences between the Patent Office and at least parts of the profession over whether, to be patentable, a claimed invention has to relate to a ‘field of technology’.

The issue is whether ‘pure’ business methods – business methods which are not ‘implemented’ in the form of some kind of technology (like computer software/hardware) can be patented – or whether they aren’t really inventions in a ‘field of technology’. The issue has been raised in a new US decision of the Board of Patent Appeals and Interferences. (more…)

APC Magazine has a very interesting ‘feature’ today on MIPI, the friendly-sounding but definitely serious enforcement arm of the Australian Record Industry (doesn’t it just make you think it’s the name of a Muppet figure from Sesame Street? Hi, I’m Mippy. Who wants to play a spelling game with me? Can you spell P-I-R-A-C-Y?)

Anyway, name jokes aside, this is a serious report. It deals with the identity of MIPI, copyright enforcement strategy in Australia and likely shifts in that strategy (will we have more criminal enforcement?), and the settlement of the Australian BitTorrent case. (more…)

The US Copyright Office has announced the start of the next rule-making on exceptions to the ban on circumventing access control measures under the US DMCA. Submissions from the public are now being sought, with hearings scheduled for April 2006.

This is relevant to us here in Australia, as the House of Representatives Legal and Constitutional Affairs Committee is currently holding an inquiry on the appropriate exceptions under the currently-being-drafted Australian version of the DMCA, which we must enact as a result of the US-Australia FTA (for my previous comments on this, see Weatherall’s Law, on the sidebar, or click here and here).

Might I point out the process adopted by the US to prepare submissions on this issue? 2 months for initial comments, with a period set aside for reply comments. Overall, the US process looks decidedly less rushed than what the Australian government appears to be doing.

Bit of a round up around the place on the Stevens v Sony ruling by our High Court, which I’ve commented on already: (more…)

Apparently special leave was refused by the High Court in The Panel case this morning. I assume the issue on which special leave was sought was the concept of ‘substantial part’ as interpreted in the recent Full Federal Court decision. (yes, I know – it’s already been to the High Court once. On the meaning of ‘broadcast’. But then the Full Federal Court gave a judgment on what constitutes a ‘substantial part’ of a broadcast).

So that long copyright saga draws to a close. All together now … sigh.

I’d be relieved, only that it leaves Australian copyright law on the meaning of ‘substantial part’, particularly as it relates to Part IV subject matters, pretty much incomprehensible (hat tip: Michael Handler for passing on this news).

You can find his comments here, on Weatherall’s Law, and here, on Michael Geist’s blog.

In Stevens v Sony, the Australian High Court today offered its first view on Australia’s current legal equivalent to the US DMCA. The encounter is an interesting one.

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The High Court of Australia has delivered its highly-anticipated judgment in Stevens v Kabushiki Kaisha Sony Computer Entertainment.

The case considered recent changes to the Copyright Act 1968 (Cth) enacted by the Copyright Amendment (Digital Agenda) Act 2000 (Cth), which adapted existing copyright laws to certain challenges presented by digital technology. The particular issue addressed by the High Court was whether Eddy Stevens, who sold PlayStation game consoles with modified chips that allowed users to play copies of PlayStation game software not authorised for use with consoles purchased in Australia, had circumvented a “technological protection measure” as defined by seetion 10(1) , and prohibited by section 116A of the Copyright Act.

The short answer to all of this is that the High Court ruled that Stevens did not violate the Copyright Act as contended by Sony. See Kim’s post for further details.

No, I’m not learning Finnish. That is the first line of this highly recommended article on Crikey.com.au – Therese Catanzariti, Australian expat in Finland, on Finnish music with a rather nice segue into Kazaa and private copying issues.

In other IP news and reading this morning:

• Warwick Rothnie on the ever-ongoing (or rather, never-going) iTunes Australia saga. Oh, and Warwick – government comments on where the fair use inquiry was at as at the end of August can be found here.
• The Economist on the digital home and the fundamental importance of open standards and interoperability in getting consumers to shift to new devices.

What else am I reading? (more…)

I hadn’t mentioned this, because it seemed to me so much less important than other current government reviews (on TPMs and copyright exceptions), but Attorney-General’s are running yet another simultaneous review: this one of the appropriate scope of the ISP safe harbour provisions brought in with the FTA Amendments last year. I wasn’t going to blog about this, because it’s pretty clear that AGs do not think it requries wide comment. But now Warwick Rothnie has commentary here, I’ll just note it in passing. (more…)

Some more links to peoples’ comments on Kazaa:

1. a couple of articles are available on Online Opinion: including this piece by Stephen Peach (ARIA), and this piece by Stephen Abood.
2. Michael Madison’s views (University of Pittsburgh) – interesting comments comparing US and Australian approaches to legal development.
3. Phil Tripp’s views are here (Tripp is a music business type person, and runs the website themusic.com.au, a news/commentary portal for music biz)
4. Brendan Scott’s views here (pdf)
5. Ed Felten’s comments on Kazaa are here.
6. Kathy Bowrey’s Comments (and comments on many other digital copyright and ‘piracy’ issues) here.
7. David Starkoff (recommended – don’t agree with him on everything but it’s an interesting view);
8. IPKat (just saying it seems a sensible result. Of course, that’s not the issue – the issue is the reasoning, which is problematic for reasons I’ve outlined and Matt Rimmer has also underlined in his comment on this and Geists’ blog, quoted in Starkoff).

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The decision in the Australian KaZaA case (Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242) has been published.

The New York Times has also published an article on the decision, and gives a useful history of KaZaA since its launch in 2001.

It is clear that this decision will have implications beyond Australia’s shores. For some detailed comments on the decision, see Kim’s post.

I’ve already put up fairly extensive (albeit initial) comments on Kazaa below. I’m not, of course, the only one to comment on the case: here are some more links:

• Michael Geist on how the Kazaa judgment shows that Australian and Canadian copyright law are moving apart;
• The Australian (news story)
• Copyfight (reporting the story)

It’s not much – but I’ve not yet found all that much apart from news stories.

Let me know if you find more commentary that I should link to here. Also, if there is anyone out there with some comments they want to post, feel free to put them in the comments box or, if that’s just too annoying, email them to me so I can post them direct to the blog.

The Federal Court of Australia has ruled that the developers of peer-to-peer file sharing software infringes copyright in music recordings. Although the decision has not been posted yet, it has been reported on in the Australian press.

Interesting, Justice Wilcox has not ordered for the KaZaA system to be shut down, but for the technology to be modified so that instances of copyright infringement are reduced.

So today, senior Australian Federal Court judge Justice Wilcox handed down his decision in the trial of the Kazaa case. In this case, over 30 applicants – in essence, copyright owners – sued the companies and individuals involved in providing Kazaa software. They alleged all kinds of things, but the essence of the case is this question:

By providing P2P file-sharing software (and through all their other activities), did the respondents (Sharman companies, Altnet companies, and assorted individual directors) authorise the undoubted copyright infringement done by the users of the software?

The result?

• The Sharman companies did authorise infringement. They did not engage in other forms of infringement/illegality alleged by the copyright owners (including direct infringement, conspiracy, misleading conduct under the TPA or unconscionable conduct);
• The directors/head honchos in Sharman are liable for authorising infringement too;
• Some of the other parties avoided liability.

The Australian are calling it ‘The Day the Music Died’ (a bit odd, given that the market has, of course, moved on from the Kazaa system). Below are some initial thoughts.

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