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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…)

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…)

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…)

I blogged briefly yesterday about the release of the TPM Inquiry Report; it’s been attracting some international interest, and you can see my previous post for links to that commentary.

I’m still trying to digest the effect of the report. But the AFR has a story today (sorry, subscription only) noting that the report may well lead to conflict with the US. And here’s the kicker: our Trade Minister is apparently meeting US trade officials in Washington DC next week to review the first 15 months of the FTA.

What’s the bet he gets a bit of a pounding on the Report? But what to do? The dictates of Australian politics, and international realpolitik may be in conflict here. (more…)

Well, it’s out. Yesterday, the House of Reps Standing Committee on Legal and Constitutional Affairs released its report on the Review of Technological Protection Measures Exceptions. This is the committee set up to examine what exceptions should be created, as Australia implements Article 17.4.7 of the AUSFTA, which requires Australia to implement stronger anti-circumvention laws, more akin to the US DMCA.

And what a report it is. It has a list of 37 recommendations, many of which are concerned with protecting user interests. More over the fold. (more…)

So on Friday, I’m at the ACIPA Annual Copyright Extravaganza in BrizVegas, and Matt Rimmer is talking about Google and all the court cases against it. And one of the cases is that brought by Perfect 10, suing over the existence of its (nudie wimmin) images in Google’s thumbnail images as displayed in Google’s Image Search function. And I have a bit of a laugh to myself, muttering phrases to myself like ‘total try-on’, and ‘haven’t you read Kelly v Arriba-Soft?‘ Then this morning, I get an email from a reader, with the title ‘Girlie Photos Land Google in Legal Trouble’, with a link to this SMH story. So I’m figuring, try on. Indeed, I shoot back a response – without reading said story – saying ‘looks like a try-on to me’. Finally, this arvo I read the story. And, it transpires, there is an injunction. My reaction: what? Or, as Marty Schwimmer – says, ‘wow’.

Now I’ve read the case. In essence, a preliminary injunction will be ordered against Google (terms yet to be determined) against its copying, and displaying , of thumbnail images of Perfect 10’s nudie wimmin pictures.

The judgment has some amusing footnotes: footnote 4 in particular, where the court notes that Perfect 10 complained ‘thumbnail’ is a misnomer when the image may be 8 x the size of an actual human thumbnail. Oh, puh-lease. Amusement aside, however, the case is interesting – even for us Australians. I reckon most of the discussion in the blogosphere is likely to go to the ‘fair use’ issue: ie, is Google’s creation, and display, of thumbnail pictures ‘fair use’. The court said no – something I thought was pretty interesting. But actually, from an Australian perspective, perhaps even more interesting are some of the parallels with Cooper, on liability for linking to stuff. (more…)

The blogosphere is alive over the last few days with reports that the RIAA are saying that format shifting copying, like copying music from a legitimately-purchased CD onto your iPod, is not fair use. This appears to be inconsistent with their previously stated position – and of course, what is interesting for us here in Australia is, what implications does this have for the Fair Use Inquiry? (more…)

US copyright expert William Patry (Former copyright counsel to the U.S. House of Representatives, Committee on the Judiciary; Policy Planning Advisor to the Register of Copyrights) has commented on the US Copyright Office’s orphan works proposal, which I commented on briefly last week. Prof. Patry has also written, with Justice Posner, on orphan works (get the article here). Worth noting this paragraph from Patry’s commentary:

I commented the other day about the Blackberry patent dispute between RIM, makers of the Blackberry device, and NTP. My comments were basically on the court processes, but there are ongoing issues happening in the Patent Office. The new development? I’ll just quote TechDirt:

(via Joe Gratz) The US Copyright Office has recently conducted an inquiry into the impact of copyright on use of, and access to orphan works – in essence, works where the owner of copyright cannot be identified. The very long time copyright lasts tends to lead to lots of these orphan works – where copyright owners die, or go out of business. It has often been noted that copyright term extension gave protection that might be useful for a very small proportion of works, but also closed off the possibilities for using, or making available the massive body of these little orphans.

The US Copyright Office has now completed its inquiry, and has recommended a statutory defence, which would limit the availability of injunctions, and limit monetary awards to ‘reasonable compensation’, provided that a person first carried out a good faith, reasonably diligent search to locate the owner before going ahead with use of an apparently orphan work. (more…)

Gosh, too much IP/Tech news is just never enough, right? There’s heaps going on right now. I’ve commented on the whole patent injunction issue (Blackberry, and eBay v MercExchange) below. But there’s so much more going on, I’ll just post a couple of pointers to more info. Over the fold, more on the many Google stories hitting the news, as well as Ed Felten on DRM. In addition, I note that the Kazaa contempt case (over Kazaa’s decision to block Australian access, rather than alter its software) was listed, as I understood, for hearing in Sydney yesterday. Does anyone know what happened? (more…)

Today, Patently-O has a summary of the briefs received in the US Supreme Court thus far in the case of eBay v MercExchange . Parties briefing include Yahoo!, the EFF, AIPLA, 52 Law Professors (written by Mark Lemley, who has written prolifically and informatively on matters of patent litigation generally), a bunch of technology companies (including a joint brief from Intel, Microsoft, Oracle and Micron), Nokia and others. The summaries make an interesting read, because they reveal two things: that this dispute has a very broad background in some of the most contentious reform issues in patent law in the US today, and second, that this could well end up being, as Patently-O has described it , ‘the most important patent case in the past five years’. (more…)

This edition of “What is..?” considers VoIP, otherwise known as Internet telephony or IP telephony. VoIP, which stands for “Voice over Internet Protocol”, refers to the transmission of voice telephone calls over the Internet or any other IP-based network. VoIP systems use packet-switched networks to route and transmit voice calls, rather than the circuit-switching systems used by “traditional” voice telecommunications services.

This article provides an introduction to VoIP, including how it differs from traditional telephony services, and considers some of the regulatory issues raised by providing voice telephony over the Internet. While today VoIP might appear to be a niche product, it is in fact threatening to change the structure of the telephony industry, and is evidence of convergence between the Internet and telecommunications. (more…)

It is far too hot and sticky this morning in Melbourne to spend vast amounts of time blogging. (hmmm, theory, how does weather affect blogging? More blogging if colder and stuck inside..?).

Four interesting stories today though, on the continuing Copyright and Politics saga in Canada, on the take-down of Wikipedia Germany, on Google Subpoenas and on the question of who owns the news in the US? More over the fold. (more…)