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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…)

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…)

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…)

about fair use, space shifting/personal copying, the DMCA – can be found on Bill Patry’s blog here.

Then you should read this beautifully-written recap on the oral arguments in the US Supreme Court in the KSR case – an important US case on obviousness. And if you’re interested in more, I recommend The Fire of Genius, and Patently-O.

And in a completely UnAustralian but interesting note, it appears, from what’s being said on TechDirt, that USTR pressure will see AllofMP3 – the Russian site for cheap music – shut down.

It’s always interesting when, simultaneously with law reform here, something happens overseas.

At the moment, Australia is drafting its own OzDMCA. The Bill is due to pass Parliament next week. Australia has drafted a series of legislative exceptions to the laws that ban people from ‘hacking’ (circumventing) DRM (technology used by copyright owners to prevent access/copying of copyright works). It has also issued draft regulations that will create more exceptions to the ban on circumventing access controls. Australia has also instituted a system where exceptions will be able to be sought on an ad hoc basis, when a problem arises.

In the US, every 3 years, the Copyright Office considers whether new exceptions to the ban on circumventing access controls (17 USC 1201) is required. Yesterday, US time, the US Copyright Office issued its third rulemaking on ad hoc exceptions to the ban, under US law, on circumventing access controls on copyright works. They’ve made quite a few recommendations. A list, and comments, over the fold. (more…)

One of those issues that has been much debated in the US in copyright circles is whether Google’s Book Search (the project involving digitisation of books and the making of those books searchable) is legal or illegal under US Copyright Law. The issue is whether this is fair use or not. We’ve had academics dividing over the issue (on the pro-book search side, see Lessig, on the anti side, see Siva V). We’ve had major public policy events over the issue. And we have litigation of course before the courts in the US.

Not to worry for us Australians. Apparently, our omniscient Attorney-General already knows the answer. In his interview last week:

“I think that what Google wants to do is to make lawful activity that they are not allowed to do in the United States. Part of their arguments about search engines and the like really arose from the fact that they wanted to acquire material from some of the very large libraries, copy it all, and use their search engines to search it.They essentially want to become the organisation handling the copyright…”

Now, I’m not going to express any views here about whether or not Google Book Search is fair use. Because, you know, that’s a US issue, that is before US courts. But isn’t it great to see that our AG is not prejudging the issues…

[update: where are my manners?  Hat tip, Matt Rimmer for pointing this quote out.]

I really did think that people must be joking when they talked about patents for tax limitation strategies. Really. Just on the face of it, the idea that the state might grant a monopoly on a particularly creative way of avoiding paying tax – ie avoiding providing the state’s revenue – just struck me as so ludicrous as to be funny. That’s why I expressed disbelief about the Grant case, and wasn’t surprised by its outcome here in Australia. Such things = not patentable, and that seemed right.

Even yesterday, when I saw in the online news that this was an issue in the US, I was a little disbelieving that this could be a serious issue.

I admit it. I was just plain wrong on that. Take a look at this long, serious document, entitled Background and Issues Relating to the Patenting of Tax Advice, prepared by the Staff of the Joint Committee of Taxation, for the Subcommittee on Select Revenue Measures, part of the House Committee on Ways and Means, for a hearing in July 2006.

Beggars belief. Really. May we never reach that stage here.

Very brief. Just sufficient to point you towards this detailed analysis of IBM’s new ‘patent policy’, all part of a very general debate about technology and patents that has been going on in the US for some time (hat tip: Fire of Genius).

Yesterday, Engadget carried an interview with Viodentia (the guy who cracked Microsoft’s DRM). Today, it is reporting that Microsoft is now suing him for copyright infringement. He is one of 10 unidentified defendants (called “Does”, as in “John Doe”). In the lawsuit, Microsoft will seek to get discovery of documents which will allow the identification of the defendants. (more…)

The Washington Post is reporting that starting this October Term, the US Supreme Court will release transcripts of oral arguments the same day they are held. Very good news. It also looks as though the transcripts will fully identify each Justice asking a question (which has only been available in the paid transcripts in the past). It’s taken a long time, but a same-day service would be impressive: the Australian High Court (which has had transcripts posted online on AustLII for over 12 years), usually takes between one to three or four days.

The New York Times has prevented access from the UK to an article detailing intelligence on recent terrorism concerns in the UK. The article in question, “Details Emerge in British Terror Case” (published 27 August), contained details that may have run afoul of the requirement under UK law that prohibits the pre-trial publication of “prejudicial information” about defendants. The New York Times used technology designed to deliver targeted advertising to users to prevent anyone using a computer located in the UK from downloading the article. The article quotes Jonathan Zittrain (of the Berkman Center at Harvard Law School and the Oxford Internet Institute) in saying that the paper’s action is consistent with trends on the Internet to restrict information.

It is thought to be the first time that the paper has withheld access to an article to avoid contravening laws in the UK.

Yesterday, I gave a talk in Canberra for the ACT Society for Technology and the Law (thanks for the invite, guys) about P2P file-sharing and liability for copyright infringement. One of the things I mentioned in that talk was the LimeWire suit, and one of the questions I got was about how our law of authorisation of copyright infringement mapped against US law. For people wondering about that question, one very good source is the paper by Jane Ginsburg and Sam Ricketson, Inducers and Authorisers: A Comparison of the US Supreme Court’s Grokster Decision and the Australian Federal Court’s KaZaa Ruling.

But it’s also worth looking at this post by William Patry, and the associated papers: the filing in the RIAA v LimeWire case, in which the RIAA are pleading each different form of liability that arises under the US law. (more…)