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The much anticipated judgment in the C7 matter has been handed down today…it’s a wopping 1230 pages/7MB. Get it here. In a very small nutshell, Channel 7 did not prove its pleaded case and was thus unsuccessful. The issue of costs is still to be worked out. His Honour Justice Sackville estimates costs in excess of $200million. The obiter on ‘mega-litigation’ will be especially useful to the readers of this blog who teach litigation and legal professional ethics.

Well, well, well: those of us who, in the fine tradition of lawyers everywhere thinking their own area is sexy, had decided that the High Court would take any old IP case that sounded vaguely interesting, will have to revise their views.

Not only did the High Court refuse special leave in the BP colour trade mark case, but now they’ve refused special leave in the Cooper case on authorisation liability (transcript not yet available).

This one, I have to admit, surprised me. I was very critical of the Full Court judgment when it came out late last year. Now we are stuck with it. Despite the fact that it is arguable that Australian authorisation liability for copyright infringement is now more restrictive (ie, more copyright-owner protective) than elsewhere. Certainly Canada is less restrictive - there, our caselaw was explicitly rejected. Arguably things are less restrictive in the UK, too. Interestingly, our law is more copyright owner protective even than the US: and it’s not just me who thinks so: see this paper by acknowledged experts Sam Ricketson and Jane Ginsburg).

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…)

Various reactions to the linking is authorisation’ Cooper decision handed down yesterday by the Full Federal Court:

1. I commented yesterday (summary? ‘troubling’. ‘Have we, or have we not just had a very extended debate about copyright law in Australia? Was not one of the memes in that debate the idea that copyright ought to ‘work’ in a digital environment? Are not search engines, and links, fundamental to the way the Internet and digital environment work? Did all this debate completely pass the members of the court by?’)
2. Techdirt have commented (’the idea that it’s the technology creator’s job to build in protections against infringement in how they design a tool is also extremely problematic in placing the burden on the technology makers. It’s a guaranteed recipe for slowing down innovation by putting in place both chilling effects against innovation and additional development costs’)
3. Boing Boing comments here (’If that precedent were adopted worldwide, there would be no Google, no Wikipedia, no internet as we know it’)
4. Black comments here (’I agree with Kim’)
   
5. The Age has the story here.

As you can see, the tenor of this commentary is - ’shock horror Australian law says linking is infringement; Google’s in trouble’.

Take a deep breath. It’s important to appreciate the limitations of this decision. (more…)

As I anticipated on Friday, and noted earlier today: the Full Federal Court judgment in the Cooper case has been handed down. This is a significant, appeal judgment on the scope of secondary liability in copyright law: that is, when can one person be responsible for the infringing activities of another?

In this case, the Full Federal Court had to consider whether a website, structured and designed both to provide links to infringing MP3 files, and to provide facilities for the easy, automatic upload of such links, could lead to liability for authorising infringement of copyright for the website designer (Cooper), and the hosting ISP (E-Talk) (the website itself, now down, can still be seen (though not used) via the Internet Archive Way Back Machine (the URL was www.MP3s4FREE.net) To be completely clear, Cooper was not hosting infringing mp3s. But his website did provide easy access and a central point for placing links.

At first instance, Tamberlin J held both liable - leading to much commentary, particularly on the breadth of the Australian concept of authorisation. If you’re interested in where Australian law on secondary liability for copyright infringement lay prior to this judgment, and how it compares to US concepts, have a read of this article by copyright leading lights Sam Ricketson (australia) and Jane Ginsburg (US).

Summary: in this judgment, the Full Federal Court has pretty much affirmed the reasoning of the Trial Judge. Overall, I find the reasoning pretty troubling in this case: particularly the reasoning of Branson J, which seems to me to endorse a broader view of appropriate liability than the other judgment of Kenny J. I think the judgment shows three things:

1. That Australian law is out on its own in terms of potential liability for authorisation of copyright infringement. The law is certainly broader - that is, the scope of activities that will potentially lead to liability is wider - than equivalent concepts in the UK (as illustrated in cases like the Amstrad case) or Canada (as illustrated by cases like CCH). And, as Ricketson and Ginsburg point out, it is broader, even, than US law post-Grokster. Anything that would be caught by post-Grokster inducement liability would also be caught by Australian authorisation liability - and then some.
2. More broadly, the case illustrates that Australian copyright law is increasingly becoming a strange, independent beast. The judgments in this case are truly remarkable for their lack of reference to, or engagement with, recent overseas authority or legal developments. Just remarkable.
3. Most remarkably to anyone outside that arcane society of the High Priests and Initiates of Copyright: linking to another website that carries an infringing file does carry some legal risk under the reasoning in this case.

Over the fold, I have some more detail. But let me give you a flavour of what I think. As I read the judgment, quite honestly, I was amazed by the absence of any explicit conscious engagement with the real world. To read this judgment - as I said, particularly the broader one of Branson J - you could be forgive for wondering how much the honourable members of the court actually use the Internet. It’s not way the law is described, it is the fact that the judgments can make comments about the potential liability of a website operator for copyright infringement for the most mundane acts - like, oh - linking to another website - without any acknowledgment that that might be an issue, or a problem, or an even slightly undesirable development in the law. (more…)

Judgments (2 of them) are here.
Helpdesk employee wins; Cooper and the ISP lose.
Enjoy!
More when I’ve read it.
Hat tip: Starkoff again, naturally.

Today’s funny moment is from The Australian, which is carrying a story that French cosmetic company L’Oreal has won a copyright suit against a Dutch company for copying a perfume. The story appears to have originated in The Times, but does not as yet appear to have been widely syndicated. The bizarre thing, of course, is how such a claim could be brought in copyright. (more…)

Yahoo reports that the US Supreme Court refused to hear an appeal by AA Milne’s granddaughter Clare to cancel a licence to the Winnie the Pooh characters from the estate of a long-time licensee so she could license them to Disney.

According to a scanned article on the website of the licensee’s lawyer’s firm, Disney was a co-plaintiff of Clare Milne’s at trial, but did not join the appeal. The estate of the licensee, Stephen Slesinger, won both the trial and appeal to the Ninth Circuit Court of Appeals from which Milne unsuccessfully sought certiorari. (more…)

The New York Times is reporting on a story by journalist Seth Mnookin that will appear in the forthcoming issue of Vanity Fair about author Lewis Perdue’s lawsuit against Dan Brown. I commented a couple of months ago on Perdue’s loss in the Court of Appeals for the Second Circuit.

The Vanity Fair article is not yet online, but the Times article gives an idea of what it will be about, and has some quotes. After introducing the procedural history, it states that “Mr. Mnookin’s article suggests that Mr. Perdue might have had a valid case, if not a strong legal one. Mr. Mnookin compares the two novels, finding that ‘The Da Vinci Code’ ‘contained a plot, pacing and structure that were very similar to “Daughter of God’s”‘ ,” and continues (more…)

A few interesting developments on a number of fronts:

The Register has a story panning the trial judge’s decision in the Apple trade secrets vs blogging case. According to the story, “Judge Rushing cites Wikipedia as a source, a mistake which earns students an ‘F’ grade today. He talks about the need to disregard economics and sociology in favor of a ‘memetic marketplace’ - whatever that is - and allows himself some flights of technological rapture.”

ArsTechnica has an interview with the CEO of eMusic. You may not have heard of eMusic, but it is currently the number 2 seller of downloadable music, behind only Apple’s iTunes Music Store. And the interesting part: eMusic does not use DRM. (And its songs cost only about 25c each, from what I can see on its website). I wonder how Napster can complain about this one?

Finally, an interesting post claims that a newly-created lobby group for net neutrality is just a shill for telcos. And according to SourceWatch (run by the nonprofit Center for Media and Democracy) the primary funder of the group is … AT&T.

This slightly disturbing judgment is doing the rounds just now, although it was delivered in February. It was an application for review of a denial of refugee status brought on three grounds. The first ground failed; the second ground would probably have been enough on its own to have the decision set aside.

It is the third ground that is of some interest:

33. In support of ground 3 the applicant complains that the tribunal’s decision was vitiated by bias both apprehended and actual. On the first page of the decision there is a heading in bold type as follows:

DEFINITION OF ‘REFUGEE’ oogabooga.

34. The explanation for inclusion of the word ooga-booga is that the tribunal member was having difficulty with her spell check program and it was suggested that she type a nonsense word into the decision to see if the spell checker would find it. The tribunal member said that she overlooked the word when proofing the decision.

The Federal Magistrate (Riethmuller FM) disposed of a preliminary submission by the Commonwealth as follows:

36. Counsel for the Minister relied heavily upon the fact that the word does not appear in any of the major dictionaries and points out that it could not be an example of onomatopoeia, because onomatopoeia describes a word that sounds like the thing it is describing. Counsel for the Minister, however, noted that the term Ooga-booga appears to have been adopted as a brand name for a line of Australian clothing. Clothing names are not altogether helpful given other recent brand names such as FCUK and CNUT appear in the marketplace.

Then, he proceeded to sketch some recent and not-so-recent uses of the term. Unfortunately, this one contains an error:

The term has also appeared in web posts, such as the following which appears on the ‘Ask the Myth Busters’ site at < http :// science.slashdot.org > where it is stated:
I know at one point in the show you’ve stated that you’d like to stay away from the ‘ooga-booga’ myths, meaning I suppose the ones with a bit of mysticism attached to them. …

The website cited [should that be ‘webcited’?] is Slashdot’s science section and has nothing to do with Mythbusters; it just happened to carry a post last November entitled “Ask the mythbusters”, with answers posted in December.

Not all that surprisingly, after noting that “[t]he term appears to have overtones of mysticism and racism in its more modern uses”, Reithmuller FM sent the matter back to be heard by a differently constituted Refugee Review Tribunal on the grounds of apprehended, though not actual, bias:

48. These proceedings involve a claim for refugee status and a protection visa on the basis of a fear of personal harm as a result of political conduct in Burma. The issues are potentially those of life and death for the applicant. It is essential that the public and those involved in proceedings have confidence in the integrity and impartiality of such proceedings.

49. In the circumstances of this case I am of the view that a fair minded observer appraised of the facts and circumstances of the ooga-booga comment would entertain a reasonable apprehension of bias.

The US Supreme Court has unanimously allowed eBay’s appeal regarding the award of injunctive relief for patent infringement, and returned the case to the District Court for further consideration. Justice Thomas wrote the opinion of the court, which was characteristically short and to the point. The Chief Justice issued a concurring opinion joined by Scalia and Ginsberg, J.J., and Justice Kennedy issued a concurring opinion joined by Stevens, Souter and Breyer, J.J.

The procedural background was as follows: MercExchange held a number of patents which it attempted unsuccessfully to license to eBay and half.com. MercExchange then sued the two for patent infringement, and succeeded. (more…)

You might recall some comments I made, a couple of weeks ago, on Justice Heerey’s evidentiary rulings in the passing off litigation between Cadburys and Darrell Lea. Justice Heerey limited the presentation of certain survey and expert evidence. The judge’s ruling was informed by a policy against allowing infinite expansion of evidence in a case dealing with straightforward consumer products. The judge considered that:

‘Such evidence shouldn’t be admitted because of the rules of law above, which are based on sound policy: avoiding overcomplicated, expensive trials with lots and lots of evidence and cross-examination and warring experts. The judge is clearly concerned that admitting the evidence in this case will lead to it being expected in all of these types of cases.’

My clever RA Aaron Newell has pointed me to a case that perhaps indicates that Justice Heerey had a good point here: a recent Canadian decision concerned with trade mark issues - amongst them, dilution style harm. (more…)

According to the Copyright Tribunal - 22.5c per subscriber per month is what it is worth. That is how much Pay TV channels will soon be ordered to pay copyright owners (through their collection vehicle, Screenrights) for the privilege of retransmitting free to air channels to their subscribers. The decision, handed down 3 May, has already been reported in the Sydney Morning Herald and in the Australian.

The flavour of the story in the media has been interesting - the Australian pitches it as ‘nothing comes free’ for Pay TV; the SMH is even more blunt. Under the headline ‘Pay TV hit with copyright fee’ it comments that:

”PAY TV operators, including Foxtel, Optus Vision and Austar, will now have to fork out $3.5 million a year for retransmitting the five free-to-air channels on their platforms’

But there’s a little more to it than that. As the SMH notes, Screenrights had initially asked for $10 per subscriber, per month. Screenrights in their final submissions argued that an amount of $2.50 per subscriber per month was ‘conservative’. And as the Australian also notes that ‘The pay-TV networks, including Foxtel, Optus and the regional network Austar, argued they should pay no more than 20c per subscriber per month.’

Hmmm: so Screenrights thought $2.50 was conservative; the upper bound of the Pay TV people was 20c. The result was 22.5c - a smidgeon above what the Pay TV people had argued (admittedly, the Pay TV people were arguing that the ‘lower bound was zero’, based on past arrangements). While Screenrights has ‘welcomed‘ the decision, my guess would be that they would view this as a pretty low fee.

(more…)

Well, well, well - haven’t we all been painting the town purple this last couple of weeks! We’ve had the decisions of Justice Heerey on evidence in passing off/s 52 a little while ago, then last week his Honour’s final decision holding that Darrell Lea had not passed off its goods as Cadburys, nor confused nor misled consumers through use of the colour purple.

Now, IP Australia have put online their decision (watch it - 59 page pdf) in Darrell Lea’s opposition to Cadbury’s application to register a trade mark for the colour purple for chocolate. And while Darrell Lea have succeeded in opposing the registration, IP Australia have ruled that Cadbury can get a narrower registration for their colour purple for block chocolate and boxed chocolates. (more…)