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BDW has alerted me to the fact that:

‘The NSW Legislative Council Standing Committee on Law and Justice has released their final report on the inquiry into unfair terms in consumer contracts. This is likely to have a direct impact on users of internet, mobile phone and cable television services, amongst others. … The Committee has recommended creating a taskforce within the NSW Office of Fair Trading to develop and implement a scheme for the protection of consumers in relation to unfair terms in consumer contracts. The scheme will be based on the Victorian model.’

I think this is an interesting development, but it also puts me in mind of something that Mark Lemley points out in a new paper – that it’s not just consumers who are affected by so-called ‘unfair contracts’:

‘The rise of terms of use has drawn a great deal of attention because of the mass-market nature of the resulting agreements. Terms of use are drafted with consumers or other small end users in mind. Commentators – myself among them – have focused on the impact of this new form of contract on consumers. But in the long run they may have their most significant impact not on consumers but on businesses. … Businesses … are presumed to know what they are doing when they access another company’s Web site, so courts are more likely to bind them to that site’s terms of use. Sophisticated economic entities are unlikely to persuade a court that a term is unconscionable. And because employees are agents whose acts bind the corporation, the proliferation of terms of use means that a large company is likely agreeing to dozens or even hundreds of different contracts every day, merely by using the Internet. And because no one ever reads those terms of use, those multiple contracts are likely to have a variety of different terms that create obligations inconsistent with each other and with the company’s own terms of use. ‘

And when I write “Apple”, whom do you think of? The computer maker? Thought so. Today, Mr Justice Mann found for Apple Computer, Inc. in the lawsuit between it and Apple Corps Ltd (the Beatles). My intro is possibly a little misleading, however, as the case was not directly about the classical trade mark concerns of confusion between two particular marks.

Rather, it concerned the interpretation of a settlement agreement between the two parties executed in 1991 in order to avoid some of the sporadic conflicts the two had previously had in exploiting their similar marks. However, notions of applications and use of trade marks do surface in construing just what that agreement meant. (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…)

I’m more an IP person than a contract person, but in teaching IT law, you do often come up against that question – just how far can warranties go in excluding corporate liability?

The SMH reports that the ACCC has taken legal action in the Federal Court against LG Electronics for telling customers who bought its mobile phones that it offered only a limited and voluntary one-year warranty. (more…)

I’ve added Raymond Nimmer’s Contemporary IP Licensing and Information Law blog to our list of links.

Ray tends to post only every other week or so, but his entries are insightful and well argued. Those interested in the Google Print debate might be interested in reading his post on the subject, in which he argues that Google’s controversial scanning project is unlikely to fall under the fair use exception to copyright infringement.

In another post, Ray argues that shrinkwrap and clickwrap licences are enforceable contracts.

The Court of Appeals for the Eleventh Circuit recently decided a rather fascinating case, HGI Associates v. Wetmore Printing Co.. It begins:

In this case, the Microsoft Corporation (“Microsoft”), through its subsidiary, Microsoft Licensing, Inc. (“MSLI”), and business partner, Wetmore, attempted to set an ill-conceived trap to ensnare a suspected software pirate, HGI. The trap, however, only managed to ensnare Wetmore.

(more…)