LawFont.com

Media regulation in Australia will be dramatically changed over the next year. Senator Helen Coonan announced the adoption of a new media framework on 13 July, including a substantial strengthening of media regulator ACMA‘s powers and the relaxation of cross-media ownership restrictions. (more…)

For the first time, the Court of First Instance has annuled the European Commission‘s approval of a company merger. In January 2004, Sony and BMG notified the Commission that they intended to merge their worldwide music recording businesses (except for Japan) into a joint venture. In July 2004 the Commission approved the joint venture in Europe, and SonyBMG started business.

This week, in an action brought against the Commission’s decision by Impala, an organisation representing 2,500 independent music publishing and record labels, the CFI ruled that the Commission had failed to satisfy the legal requirement that the combined music recording businesses of Sony and BMG would not come to hold monopoly power.

What this decision means for the joint venture is unclear–reports state that Sony and BMG will need to lodge a new notice, and the Commission will undertake a new analysis of the transaction. But the conclusion reached could be the same. If it is not, it will be interesting to see how a joint venture that has been operating for two years will be unravelled.

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 Do Not Call Register legislation (previously noted on LawFont) was today passed in the Senate. There is no word on its date of commencement (and nothing on Senator Coonan’s home page yet either, although there is a release about government subsidising of internet porn filters that I noted noted the other day). Edited to update: ACMA now has a press release online stating that the register “is expected to be up and running in 2007”, and Senator Coonan also has a release stating that she “look[s] forward to being able to announce the start of the Register in early 2007”.

The text of the bill is also available online, and it looks to carry on the tradition of over-drafted and over-complex legislation. (more…)

The Sydney Morning Herald is reporting that the federal Government will soon announce that it will subsidise the purchase of internet porn filters. According to the report:

the plan will include subsidies for parents who buy pornography-filtering software for home computers and an injection of funding for NetAlert, the internet safety advisory body.

Microsoft is in damage control mode, after it has been revealed that their latest attempt to control piracy phones home to Microsoft every day. The extent of the daily communication appears to be just checking with a Microsoft server that the program should continue to run, and it does not appear to pass any information back to Microsoft other than your computer’s IP address.

However, this daily communication is not disclosed in the EULA displayed during the program’s installation–only the fact that it gathers information about your computer. The interesting question is whether, in initiating undisclosed communications back to Microsoft’s server, Microsoft has broken any laws — because this is very similar to the behaviour that malware exhibits (except that malware often transmits back other data about or from your computer). (more…)

There is an interesting thought piece in The Australian today about how the Australian digital broadcasting industry will be regulated relatively lightly, compared to the current analog environment.

According to journalist Mark Day, Senator Coonan has defended the current high-regulation regime as necessary because of the scarcity of analog broadcasting spectrum. But digital broadcasting does not have the same spectrum limitations. Accordingly, once the transition to digital broadcasting is complete, much of the current regulatory regime will disappear (including the anti-sihponing list, multi-channeling, and high-definition quotas). (Similarly, Senator Coonan suggested that the current regime would become “outdated” in her call for submissions on the Government’s digital media conversion. ) Where significant regulation is likely to remain is with respect to some content, particularly when that content furthers pornography or terrorism.

I found this article to be particularly interesting because of its overarching argument — namely that markets (and not regulators) are best-placed to select successful digital technologies.

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.

At lightning speed, following on a 4 April announcement, the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, has introduced Do Not Call Register legislation.

Unfortunately for small businesses, they are prohibited under the proposed legislation from joining the register. Only private individuals will be able to sign up to the Register, which will make it illegal for telemarketers to solicit them. There will be no charge for individuals wishing to be listed on the Register. Small businesses, including those run by individuals from their homes, will not be eligible. (more…)

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…)

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…)

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…)