LawFont.com

Yochai Benkler has followed a trend set by such people as Larry Lessig and Michael Geist, and made his new book, The Wealth of Networks, available under a Creative Commons License. He’s gone further than Lessig or Geist, I think, and has put the ideas in the book – which are all about commons-based and cooperative production – to the test in the real world. It will be of interest to anyone who thinks the whole concept of the Commons, Creative Commons, and ‘social production’ are interesting. Comments on this method of publication, and the book itself, over the fold. (more…)

As reported elsewhere, the Electronic Frontiers Foundation (EFF) have issued the latest update of their ‘Unintended Consequences’ paper. This one is version 4, and entitled ‘Unintended Consequences: Seven Years under the DMCA‘. (Version 3, issued September 2003, reflected the stories from 5 years). The paper is the output of an ongoing project of the EFF, which:

collects a number of reported cases where the anti-circumvention provisions of the DMCA are been invoked not against pirates, but against consumers, scientists, and legitimate competitors.

The paper was cited in a number of submissions in Australia’s own inquiry into TPM laws and exceptions, and in the final report of the House of Reps Standing Committee on Legal and Constitutional Affairs that did the inquiry.

The report of course details all the well-known stories of use and abuse of the DMCA: the Ed Felten ‘squishing research’ story, the Sklyarov arrest, Lexmark printer cartridges. But more important and more interesting is what’s new, in the last approx 2.5 years? (more…)

Subtitled: Law and, or, versus the Marketers: Evidence in the Cadburys v Darrell Lea case

I’ve been hearing rumours for some time now about evidence issues/problems/disasters in the recently concluded hearing in the case of Cadburys versus Darrell Lea, before Justice Heerey down here in the Vic Federal Court. So imagine my excitement when I realised there were no less than three decisions up on AustLII. They’re really interesting decisions because they say a lot about how law interacts with marketing people, marketing experts in these cases that are all about how consumers behave. Yes, I am a sad IP law geek. Never mind, I’ve come to terms with that. The decisions are:

• Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (which I’ll call the Cadburys Expert Decision). In this decision, Justice Heerey ruled that a whole bunch of expert evidence from a marketing expert was inadmissible;
• Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 364 (I’ll call this one the Cadburys Survey Decision). In this decision, Justice Heerey ruled some survey-style evidence was admissible; and
• Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 386 (the Cadburys Hearsay decision). In this case, Heerey J ruled that some reports that included statements from consumers about how they reacted to purple weren’t admissible to prove the truth of those statements.

I was fascinated, partly because the Judge has chosen to exclude a whole lot of stuff (which must annoy the Cadburys lawyers), and partly because I’m currently teaching Trade Mark Law to undergraduate students. Of course, one thing you spend time talking about in such a course is matters of proof. Since I’ve had to dissect the reasoning for my students, I want to spend a little time in this post putting my thoughts out there. Comments welcome of course! (more…)

Yes, all the copyright experts I know were predicting this result: London’s High Court has ruled that Da Vinci Code author Dan Brown did not infringe the copyright of an earlier book, The Holy Blood and the Holy Grail. The decision seems to affirm a basic fact: copyright does not protect ideas or facts, and an author can draw on ideas, facts, and even fictitious histories in writing new work. A good, if obvious result, it seems to me. And now the pliaintiffs end up with a very nasty costs bill: 85 per cent of Random House’s legal costs, which could top 1 million pounds ($A2.4 million).

The judge clearly did not believe the plaintiffs. According to The Age,

In the end,

• BBC story here
• The Age story here
• The decision has now been published, here

Australian Minister of Communications Helen Coonan today announced the formation of a National Do Not Call Register. The Register, which is due to be up and running by early 2007, will allow individuals and small businesses to opt out of receiving unsolicited telemarketing calls. There will be no cost for listing in the Register.

Enforcement of the Register, which will apply to all telemarketers operating in Australia (and overseas telemarketers representing Australian companies), will include warnings, fines, formal directions, and financial penalties. The Register will not apply to organisations that may have public interest objectives (ie, charity groups and persons undertaking social research), nor to companies with an existing commercial relationship with the individual or small business.

The cost of setting up the Register is estimated to be A$33 million, with the Government providing A$17.2 million, and the remainder to be provided by industry.

Is Internet filtering ever justified?

Australian Labor party leader Kim Beazley has been pushing for Internet filtering at the ISP level, to provide a “clean feed” for Australian families. The idea would be for ISPs to blacklist particular websites that are known to have pornographic content, so that children will not be exposed to objectionable content. (more…)

A little while ago I blogged about a case – and more particularly an argument – that is currently before the Copyright Tribunal. The case concerns the fees schools should pay for digital uses of copyright material; the argument concerns whether ‘telling students to view’ a website should ever be a remunerable act. Reports of the case had elicited a fair bit of commentary overseas. My own post elicited quite a lot of email.

The case itself has gone ‘underground’ a little – no new developments to be reported at this stage. But I did want to note a letter to The Australian newspaper, written by CAL CEO Michael Fraser about the case. I can’t find the letter online, so I’ll quote some of the key parts: (more…)

Coverage today of a judgment, handed down yesterday, in the Kazaa proceedings. For those who joined us late (are there any of you?), Kazaa (P2P Software provider) has been sued for authorising infringement of copyright by users of the P2P file-sharing software. Justice Wilcox handed down judgment last year, holding they were liable for authorisation, and an appeal from that judgment was heard in early February. Judgment in the appeal is reserved. In the meantime, however, there’s proceedings going on for contempt, because the trial judge did not stay his injunction pending the appeal. That is, Kazaa was ordered, in the meantime, to take steps to stop authorising infringement. And there’s a live question as to whether they’ve done enough. The judgment raises some really interesting questions about contempt. More, much more, over the fold. (more…)

From GrokLaw, the District Court of Amsterdam has upheld the validity of the Creative Commons Attribution-Noncommercial-Sharealike license. Adam Curry, a well-known media figure now living in Holland, posted some pictures of his family on photo-sharing site Flickr (his profile appears to be here). The photos carried a notice saying “This photo is public”, and were published under a non-commercial Creative Commons licence. A Dutch magazine reprinted four of the photos in a story on Curry and his children. (more…)

The Court of Appeals for the Seventh Circuit handed down an interesting judgment on when deleting files might amount to a crime. The plaintiff, IAC, had employed the defendant, Citrin, to identify properties that IAC might want to acquire. It issued him a laptop computer he was to use to record data collected in the course of his employment.

Citrin decided to go into business for himself, and he returned his laptop to IAC — with, apparently, all information on it securely deleted, such that it was irrecoverable. This, IAC suspected, included data that implicated Citrin in breach of his employment contract. IAC brought suit under the Computer Fraud and Abuse Act, but its suit was dismissed for failure to state a case. (more…)

This issue of “What is…?” provides a brief look at the emerging technology of datacasting, and considers some of the regulatory and legal issues that are raised by this new form of broadcasting. In Australia the ability to datacast is becoming a hot topic, not least because it is expected to be included in the upcoming media industry reforms. (more…)

The Australian Communications and Media Authority (ACMA) has released a report on the performance of Australian Internet services.

Understanding your internet quality of service 2004–05 examines the following issues:

1. download data rates on a major city and regional basis;
2. upload data rates on a major city and regional basis;
3. data rate variation by time of day;
4. Internet service availability;
5. domain name server (DNS) lookup times; and
6. latency (an indicator of the time delay of information to pass through a network).

ACMA found that, in general, Internet download speeds are not as fast as consumers are led to believe, with DSL and dial-up (which serve the majority of users) operating at an average of approximately 83% and 74% of advertised rates or maximum modem speeds, respectively. (more…)

Something I should have noted last week: the Adelphi Charter was launched in Australia, at an event organised by AEShareNet. To quote from the Charter website:

The Charter, which was formally launched worldwide in October 2005, is really a simple bunch of principles, that sound a lot like common sense – unless you’ve been in the IP debate for a while, in which case it sounds like a foreign language, so far is it from the ordinary parlance. In a way, the Charter advocates a return to simple, important principles in an area that far too often descends immediately to an unhealthy level of detail and qualification. You can see a ‘January 2006’ report here. (more…)

In a significant shift from its jurisprudence of the past forty years, the United States Supreme Court has rejected the presumption that a patent confers market power on the holder of that patent. In Illinois Tool Works Inc. v Independent Ink, Inc. (No. 04-1329, decided 1 March 2006), the Supreme Court concluded that since a patent does not necessarily confer market power, defendants in cases involving a tying arrangement must prove the existence of market power to bring an antitrust claim.

A possible implication of this case is that companies might be able to require customers to use the spare parts and supplies (car parts, toner cartridges etc.), designed and sold for use with their proprietary equipment, and prohibit the manufacture and sale of spare parts and supplies by third parties. (more…)

Breaking news is that Research in Motion (RIM), maker of the BlackBerry, has settled its dispute with NTP for $612.5m. This is higher than the $450m settlement reached a year ago, which was later invalidated by a judge. (more…)