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The Australian government’s Convergence Review Committee has released a Framing Paper and invited public submissions on what principles should guide the review over the next year.

The principles currently proposed span across broadcasting, telecommunications, and radiocommunication issues (although the bias is towards broadcasting content issues):

1. Australians should have access to a diversity of voices, views and information.
2. The communications and media market should be innovative and competitive, while still ensuring outcomes in the interest of the Australian public.
3. Australians should have access to Australian content that reflects and contributes to the development of national and cultural identity.
4. Australians should have access to news and information of relevance to their local community.
5. Communications and media services available to Australians should reflect community standards and the views and expectations of the Australian public.
6. Australians should have access to the broadest range of content across platforms and services as possible.
7. Service providers should provide the maximum transparency for consumers in how their service is delivered.
8. The government should seek to maximise the overall public benefit derived from the use of spectrum assigned for the delivery of media content and communications services.

(more…)

One of the problems with enforcing copyright in the digital environment is that there is a seemingly infinite amount of content online, free for the taking (if you don’t count broadband internet fees). As a result, it has often been difficult for content owners to convince everyone that downloading content that is easily available–but copyrighted–is illegal. This issue is nothing new.

So what is the cause of this problem, exactly? Is it too difficult to understand what copyright infringement is? Or do people just not care? I’ve always found the argument that Jessica Litman makes in her book, Digital Copyright (2001) (pp. 111-114), to be very convincing. Litman argues that many individuals ignore copyright laws simply because they don’t seem logical to them:

The current copyright statute has proved to be remarkably education-resistant. One part of the problem is that many people persist in believing that laws make sense. If someone claims that a law provides such and such, but such and such seems to make no sense, then perhaps that isn’t really the law, or wasn’t intended to be the way the law worked, or was the law at one time but not today, or is one of those laws…that is okay to ignore.

Litman notes that if enforcement is seen to be incomplete and uneven, people become less willing to apply for permission for what they currently receive without any such permission—or to pay for what they currently receive free. (more…)

Professor Joseph Weiler has now written about the judgment in the criminal libel case brought against him in a French court. A decision was handed down by the Tribunal de Grand Instance de Paris on 3 March 2011.

The details of the matter are outlined in an earlier post. In short, Professor Weiler was sued as editor of an online international law journal regarding a book review posted in the journal’s book review website. The book review was written by German academic Thomas Weigend, about a book written by Dr Karin Calvo-Goller. The review was not favorable.

The eventual result, after some correspondence between Professor Weiler and Dr. Calvo-Goller (please see my earlier post for details), was a criminal action for defamation brought in a French court against Professor Weiler. The trial took place in Paris on 20 January 2011.

According to Professor Weiler, the main arguments presented by the defense were:

1. The Court should not exercise jurisdiction, as the matter is too remote from France.
2. The Court should rule that the criminal complaint by Dr. Calvo-Goller amounted to an abuse of process.

The Court upheld both arguments. Regarding the jurisdictional issue, the Court appears to have ruled that the complainant had not sufficiently proved that the review in question was actually viewed in France during the period in which a criminal complaint needed to be filed.

Regarding the abuse of process issue, the Court noted that Dr. Calvo-Goller admitted to “forum shopping”. The Court noted that the choice of the French legal system was “artificial”, and was done because bringing the case in France would: be of lowest cost to her; give her the best chance of success on its merits, due to the nature of French law; and had the greatest potential to result in “both opprobrium and significant costs to the accused” (from an unofficial translation from the judgment).

Further, the Court noted that the review was not defamatory and that the complaint was brought in bad faith, particularly given her identity as a lawyer and someone who studied (and is thus familiar with) French law.

The Court awarded Professor Weiler 8,000 Euros in damages (approximately US$11,000). The damages will be donated to a charitable cause.

The full judgment in French and an English translation will be published on the journal’s blog in the next few days.

Update (4 March 2011): The Chronicle of Higher Education has published an article on the judgment, which includes a link to the judgment (in French), a copy of which was provided to The Chronicle by Professor Weiler.

Professor Joseph Weiler has won the defamation action brought against him in a French court, which I discussed last month here.

So far I have not been able to find any more details about the ruling, but once I do will write a longer post.

The final terms of reference for the upcoming Convergence Review to be conducted by the Australian government have been announced, following on the draft terms of reference provided for public comment in December.

At the Australian Broadcasting Summit this morning, Senator Stephen Conroy, the Minister for Broadband, Communications and the Ditital Economy, noted that the final terms of reference have been released. The focus of this review appears to be how best to regulate content that are accessible across a number of delivery platforms (television, computers, and mobile/telecommunications devices), rather than via a single means as in the past.

The terms of reference, which are now posted on the Department’s website, include:

–ensuring that the policy framework for media content and communications services is appropriate, and advising on ways of achieving it and on the potential impact of reform options on industry, consumers, and the community;
–looking at all relevant legislation and regulations implicated by the terms of reference (including, it appears, those outside of the Minister’s portfolio);
–considering both regulatory and non-regulatory measures to achieve the new framework;
–taking into account a number of issues when developing the new framework, including ensuring an innovative and effective media industry, the continued production and distribution of Australian content, developing appropriate ways to treat content that crosses international borders, and considering the appropriate ways in which radiocommunications spectrum is allocated.

Senator Conroy also remarked at the conference that the review committee will include Malcolm Long, who until recently was a member of the Australian Communications & Media Authority. Now an independent consultant, Long was also past Director of the Australian Film, Television and Radio School, and Managing Director of national broadcaster SBS, among other senior roles in the Australian media industry.

Update: The Department has announced that Glen Boreham, formerly Managing Director of IBM Australia, will be chairing the review committee. The third and final member of the committee will be announced shortly.

What is the line between academic criticism of a work and defamatory statements about the author? A French court is currently considering this issue.

In 2007, a book review website, www.globallawbooks.org, published a review of a book by Dr. Karin N. Calvo-Goller about the International Crimimal Court. The review, written by Professor Thomas Weigend, then Director of the Cologne Institute of Foreign and International Criminal Law and Dean of the Faculty of Law at the University of Cologne, was not particularly favorable. Professor Weigend’s criticism included:

…in the main part of her book [the author] simply restates the contents of relevant parts of the ICC Statute and the Rules of Procedure and Evidence…

…this exercise in rehashing the existing legal set-up is particularly unproductive since a large part of the volume consists in a reprint of the ICC Statute and its Rules of Procedure and Evidence…

…analytical nuggets are all too rare…

…[the author’s] conceptual grasp of the “inquisitorial” systems seems insufficient for a critical analysis that might go beneath the surface…

However, the review clearly states that the fault is as much with the editor as with the author of the book:

Karin Calvo-Goller has undoubtedly invested much time and effort into this book, which – but for regrettably sloppy editing – might well serve as a first systematic introduction to the procedural issues confronting the ICC.

The review is certainly not at all favourable. But neither is it a personal attack on the author.

On the other side of the matter from the author is the editor of the journal in question, Professor Joseph Weiler. Professor Weiler is no recent entrant to the academic scene. He is a well-known and respected scholar, currently University Professor at New York University, as well as the Joseph Straus Professor of Law and European Union Jean Monnet Chair at NYU School of Law. He was previously a professor at Harvard Law School and the University of Michigan Law School, and has published widely–as well as having extensive experience as an editor of academic works. His full qualifications and experience, as both an academic and legal consultant, are too numerous to summarise here.

So how did Dr. Calvo-Goller respond to the poor review? First, she asked Professor Weiler, as editor, to remove the review from the journal’s website. She was unsuccessful in doing so, even after asking a second time. All of the details are set out here. A few months later, Professor Weiler was asked to appear before a magistrate in France to respond to charges of criminal defamation brought by Dr. Calvo-Goller.

A description of the hearings and how the suit came about, as told by Professor Weiler, is available here.

The trial has now taken place, and a verdict is expected on 3 March 2011.

I should disclose that I am a former student of Professor Weiler. But the motivation behind the suit does not seem right to me. Does claiming defamation in the form of an unfavourable book review strike anyone as discouraging free expression and communication? At the very least, it seems to be an inappropriate use of the legal process. Bad reviews of one’s work, while upsetting and sometimes damaging, also appear to be a fact of academic life.

At the very least, as the New York Times has noted, damage to Dr. Calvo-Goller’s reputation may not only be achived by the poor review, but by the criminal complaint itself.

Only hours before major planned protests on Friday morning (28 January), the Egyptian government has shut down virtually all Internet access going in and out of Egypt, as well as SMS and Blackberry access. It seems that access to social networking sites such as Facebook and Twitter may have taken place as early as Tuesday.

In two cities, Suez (north of Cairo) and the northern Sinai area of Sheik Zuweid, mounting protests have been calling for President Hosni Mubarak to step down. It has already been reported that social networking websites, particularly Facebook, have been used to build support and encourage participants in rallies this week–including large ones planned for Friday morning.

By Friday morning local time, reports confirmed that Internet traffic in and out of the country had slowed to a trickle. Renesys, a specialist in analysing Internet routing data (and a self-described “authority in global Internet intelligence”) has further confirmed that very early Friday local time, virtually all routes to Egyptian networks in the Internet’s global routing table were simply withdrawn,

leaving no valid paths by which the rest of the world could continue to exchange Internet traffic with Egypt’s service providers. Virtually all of Egypt’s Internet addresses are now unreachable, worldwide.

Renesys observed that oddly, Internet infrastructure company Noor Group was unaffected by the shutdown, with inbound Internet traffic via Telecom Italia arriving as usual. It also noted that the Egyptian Stock Exchange was still online at a Noor address. Their analysis revealed that the Exchange is normally reachable at four different IP addresses:

Internet transit path diversity is a sign of good planning by the Stock Exchange IT staff, and it appears to have paid off in this case. Did the Egyptian government leave Noor standing so that the markets could open next week?

It appears that Internet traffic solely within Egypt has remained unaffected. Some reports have also said that savvy users have found ways around the Internet blocks, using proxy servers and other methods.

Update, 29 January:

Further reports of the situation in Egypt have been made, with The New York Times suggesting why the almost complete removal of the country of over 80 million people from the Internet was possible at all. Not only was the Egyptian government instrumental in encouraging the spread of the Internet throughout the country, but its relatively liberal nature gave people little reason to suspect that the Internet could or would be shut down. As a result, the handful of Internet service providers in Egypt were not ready with a workaround. Ironically, it seems, some of the people who were expressing their frustrations with the government online only may now be joining others in the continuing demonstrations.

The draft Terms of Reference for the Government’s review of the laws relating to the converged media and communications industry have been published.

Part of a FAQ on the website of the Department for Broadband, Communications and the Digital Economy, which is conducting the review, notes that:

* ‘Convergence’ describes the trend whereby devices (such as televisions, mobile phones and computers) and platforms (such as broadcast, telecommunications and broadband) that once had distinct functions may now support many different services and applications.
* You can now watch a TV show on your television, your computer or your phone. You can also make a phone call from your laptop or your email account. These examples illustrate the trend of convergence—that is, when the service experienced by the consumer is similar regardless of the network or device that delivers it.
* Convergence is driven by a range of evolving and new technologies including internet protocol networks, high-speed broadband and smart devices and phones.

The Department also notes that the incentive for the review, which will be conducted during 2011, is to ensure that Australia’s existing regulatory frameworks for broadcasting, telecommunications, and radiocommunications continue to operate appropriately in a media and communications sector that is becoming increasingly converged. Communications Minister Senator Conroy remarked in the media release announcing the review that the introduction of the National Broadband Network will accelerate the process of convergence. He also noted that the review will “look at all content delivery platforms including broadcast, mobile and fixed telecommunications and the internet”.

This review will consider possible changes to the three main acts governing the sector: the Broadcasting Services Act 1992, the Radiocommunications Act 1992, and the Telecommunications Act 1997.

The Department is accepting submissions on the draft Terms of Reference until Friday 28 January 2011.

Ever wanted a copy of the Australian Constitution when not at your desk? If so, you may be interested to hear that the full text of the Australian Constitution is now available for your iPhone (or iPod Touch). It’s a free application, available internationally through iTunes (please note that this link will work only if you have iTunes installed).

It may interest readers to know that our own Ben wrote the application and uploaded it to the Apple App Store.

Thanks, Ben!

There is certainly a value to social networking websites. Some serve professional networking purposes (such as LinkedIn). And others, like Facebook, have proved to be an effective means of connecting with old friends (for me, including ones I’d lost touch with completely).

It’s not news that we use these websites at our own peril. But here’s a couple of more reasons to be wary, both legal and technical.

A new Facebook notification? “You’ve been served!”

In what seems to be a legal first, a judge of the Australian Capital Territory Supreme Court has upheld the right of lawyers to serve legally binding court documents and notices by posting them on defendants’ Facebook sites.

Plaintiff MKM Capital applied to Master David Harper of the Supreme Court to use Facebook to serve notice of a judgment on two borrowers who had defaulted on a loan. The defendants had failed to repay a loan of $150,000 they borrowed from MKM last year to refinance their mortgage. After being granted a default judgment for the loan amount and for possession of the house after the couple failed to appear in court to defend the action, MKM then had to locate the defendants and serve them with the papers.

After hiring private investigators and 11 failed attempts to find the couple, the lawyers identified the Facebook profiles of the defendants, convinced the court that those profiles did in fact belong to the couple, and satisfied the court that communication through their Facebook pages was a sufficient means of communicating with the defendants.

Wormholes

It was just a matter of time before social networking websites became infected with computer viruses. And now it’s happened: Koobface, a Trojan worm, has been making its way through Facebook and to other social networking websites. The worm generates profile comments that encourage users to click through to an external website that pretends to offer a video to view, but then says that an upgrade of Adobe Flash is necessary first. Users who click on the “install” button infect their computer with the virus. The result? Enabling identity theft and click fraud.

On 28 July, the Australian Communications and Media Authority released its report which sets out the findings of the closed environment testing of ISP-level filters conducted in 2008. The Closed Environment testing report followed hot on the heels of the Developments in Internet Filtering Technologies and Other Measures for Promoting Online Safety report released in February 2008. The latest report shows that the filtering technology has definitely improved in terms of the accuracy of what it blocks and the impact it has on network performance since the NetAlert Ltd trial conducted in 2005. The conclusion, though, is that the filtering technology has not developed sufficiently to be able to tell the difference between legal and illegal and/or inappropriate content carried via non-web protocols (such as peer-to-peer and instant messaging).

From a contributor:

So I was walking down Martin Place at 5pm on Monday night. A group of about 10-15 pilgrims were having their photos taken. Most were standing or sitting on top of the military memorial, happily shouting out and whooping it up. Normally I would politely ask people doing this to step off the memorial out of respect for the people it commemorates (soldiers who died in their service to the country).

But I didn’t, because I was worried I might be accused of “annoying” them and getting arrested.

Is this a chilling effect or what?

The relevant rule is in the World Youth Day Regulation 2008, specifically reg 7(1)(b):

7 Control of conduct within World Youth Day declared areas

(1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that:

• (a) is a risk to the safety of the person or others, or
• (b) causes annoyance or inconvenience to participants in a World Youth Day event, or
• (c) obstructs a World Youth Day event.

(2) A person must not, without reasonable excuse, fail to comply with a direction given to the person under subclause (1).

Maximum penalty: 50 penalty units.

(3) A person is not guilty of an offence under this clause unless it is established that the authorised person warned the person that a failure to comply with the direction is an offence.

(4) In this clause, authorised person means:

• (a) a police officer, or
• (b) a member of an SES unit (within the meaning of the State Emergency Service Act 1989) or a member of the NSW Rural Fire Service, but only if the member is authorised by the Authority in writing for the purposes of this clause.

So even assuming that the conduct can be classed as “annoying”, it first looks like they need to be “participants in a World Youth Day event”. This is defined in the principal act (World Youth Day Act 2006) as follows: “World Youth Day event means any event determined by the Authority to be an event associated with World Youth Day 2008.” A private lark looks like it might not qualify.

Next, you need to be directed to “cease” engaging in the conduct, by a police officer or authorised member, and they must “warn[ ]” you “that a failure to comply with the direction is an offence”.

Finally, you have to “fail to comply with” that direction “without reasonable excuse”. If you’ve already said your piece and moved on, then this might not apply.

But, once the section bites, it can bite hard: the maximum penalty is 50 penalty units, which is $5,500. (Note that a lower penalty may be awarded.)

To give some context, this is the same maximum penalty as:

• * impersonating, or falsely representing to be an authorised building inspector: sec 86 of the Building Professionals Act 2005
• * a casino operating free liquor as an inducement to gamble in the casino: reg 23, Casino Control Regulation 2001
• * advertising that you are a chiropractor when you are not registered: sec 7, Chiropractors Act 2001
• * failing to notify the Commissioner of Police in writing within 14 days if your genuine or legitimate reason for owning a firearm is no longer valid: reg 14, Firearms Regulation 2006

UPDATED:

The Full Federal Court has just declared reg 7(1)(b) “invalid to the extent that it seeks to prevent merely annoying conduct”: see Evans v State of New South Wales.

The key passages are:

83 In our opinion the conduct regulated by cl 7(1)(b) so far as it relates to “annoyance” may extend to expressions of opinion which neither disrupt nor interfere with the freedoms of others, nor are objectively offensive in the sense traditionally used in State criminal statutes. Breach of this provision as drafted affects freedom of speech in a way that, in our opinion, is not supported by the statutory power conferred by s 58 properly construed. Moreover there is no intelligible boundary within which the “causes annoyance” limb of s 7 can be read down to save it as a valid expression of the regulating power.

and

88 For the preceding reasons, the Court will make a declaration that cl 7(1)(b) is invalid to the extent to which it is applied to conduct which causes annoyance to participants in World Youth Day events. There is otherwise in cl 7 a substantial measure of protection against disruptive behaviour, behaviour which causes inconvenience to participants and behaviour which may give rise to a risk to public safety. Over and above these provisions the general criminal laws of the State relating to disorderly and offensive conduct and the like are able to be invoked should that be necessary.

Note that, to the extent the regulation prohibits causing “inconvenience”, it remains valid:

84 … While the term is broad it does not depend upon the subjective reactions of participants in World Youth Day events to the conduct in question. It requires a judgment by the authorised person of objective inconvenience. Such inconvenience may arise, for example, where protestors by their locations or actions hinder or obstruct the movement of participants or are so loud in their protest as to impair communications between groups of participants and officials. The term “inconvenience” may be criticised as conferring wide powers of uncertain ambit upon authorised persons but it is, in our opinion, a term which can reasonably be construed as limited to matters susceptible of objective judgment. The term does not reach so far as to impair expression of opinions with which people might disagree or which they might find troubling. In our opinion that aspect of cl 7(1)(b) does not spell invalidity.

Today we had the pleasure of a staff seminar up here at the University of Queensland Law School – by David Lindsay, an old colleague of mine from my melbourne days. David these days is at Monash University Law School.

David’s recently published a book with Hart called International Domain Name Law.

Now, I remember back when I first started teaching ‘cyberlaw’ type subjects at Sydney University back in around 2001-2002, domain names was one of those standard things you did. But people seemed to move on, lose interest; stopped talking about domain names much. But today’s talk was something of a revelation to me: David outlined something of the strange, quasi-common-lawish nature of the domain name decisions, with the gradual development of views on issues of interpretation, the areas of controversy, the splits, the absence of clear principles upfront leading to a gradual ‘feeling around’ – all at internet speed due to the number of decisions being issued. He also revealed some of the more outlandish aspects of this rough-and-ready systems: the application of random bits of national law; the lottery that is panellist appointment. And he elucidated how many of the areas of controversy could be fixed with some clear understanding of the objectives of the system.

It was very clear that david’s really done the hard yards in this book: he really has read the decisions – lots and lots and lots of them – and he’s done the heavy intellectual lifting of trying to make sense of it all. I couldn’t be more enthusiastic in recommending it should you ever need to worry about domain name disputes.

This morning, one of the authors of the iPhone paper I mentioned earlier this week defends his views against Gans’ comments. One thing about Dale’s defence struck me as interesting, and that was this:

Professor Gans correctly makes the point that Apple could try and obtain permission (technically, an exclusive dealing notification) from the ACCC. Actually obtaining that permission is not a given. I think that the ACCC might well object, which they can do if they are not satisfied that the public benefits of the third-line forcing would outweigh the public detriment, and I think that balance would be weighing against Apple.

Hmmm. Firstly, I’m not sure it’s correct to characterise notification as meaning the ACCC gives ‘permission’. In fact, my reading of the Act suggests that lodging a notification provides automatic immunity from the date it is lodged with the ACCC (or soon after in the case of third line forcing conduct) and remains in force unless revoked by the ACCC.

Secondly, while it is technically true that non-revocation by the ACCC is not a ‘given’, they’re not exactly in the business of revoking these things. The statistics to some extent speak for themselves. According to the ACCC’s 2006-2007 Annual Report, page 92:

1. In 2006-2007, the ACCC received 694 new notifications, and revoked 2 (that’s a revocation rate of 0.3%). 9 were withdrawn by the notifier.
2. In 2006-2006, the ACCC received 1099 new notifications, and revoked NONE (that’s a revocation rate of zero %). 6 were withdrawn by the notifier.

Also, in determining whether a notification should be revoked, the ACCC has to take into account whether the detriment caused by the arrangement outweighs the benefit. The ACCC’s guide to exclusive dealing notifications on page 8 records the ACCC’s view that “[t]he detriment will be more limited when potential buyers of [the iPhone] have alternative sources of supply for [the iPhone] or substitute products.” Surely, except to the most ardent Apple fanboy, there are numerous economic substitutes for the iPhone (as indeed Gans pointed out).

Again, IANACL (I am not a competition lawyer). But I’m not yet convinced of this one.

Update: Gans responds. And the discussion is ongoing over on CoreEcon in the comments to that thread.
Further update: Clapperton is also getting into the discussion.

All over the press today that QUT people Dale Clapperton (of Defending Scoundrels) and Stephen Coroneos have published a paper arguing that a deal that saw the iPhone locked to a single telephone network could breach competition laws.

I’m not a competition lawyer, so I’m not really in a position to assess the validity of the argument from a legal point of view. Nor am I an economist, so I’m not able to tell you whether a deal like the iPhone one would actually pose a danger for competition. But Joshua Gans is, so head on over there for his views. In a word, not impressed. Ouch.

[Image by Hawken King, licensed under CC-BY]