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Late last week Justice Arnold in the UK High Court issued his judgment in Twentieth Century Fox v BT [2011] EWHC 1981 – ordering BT to block access to a website, Newzbin2 (www.newzbin.com), that was held in an earlier case to be infringing copyright on a large scale. Rick Shera and Lilian Edwards already have some interesting comments up, but I thought I’d add my 2c worth. (more…)

One of the problems with enforcing copyright in the digital environment is that there is a seemingly infinite amount of content online, free for the taking (if you don’t count broadband internet fees). As a result, it has often been difficult for content owners to convince everyone that downloading content that is easily available–but copyrighted–is illegal. This issue is nothing new.

So what is the cause of this problem, exactly? Is it too difficult to understand what copyright infringement is? Or do people just not care? I’ve always found the argument that Jessica Litman makes in her book, Digital Copyright (2001) (pp. 111-114), to be very convincing. Litman argues that many individuals ignore copyright laws simply because they don’t seem logical to them:

The current copyright statute has proved to be remarkably education-resistant. One part of the problem is that many people persist in believing that laws make sense. If someone claims that a law provides such and such, but such and such seems to make no sense, then perhaps that isn’t really the law, or wasn’t intended to be the way the law worked, or was the law at one time but not today, or is one of those laws…that is okay to ignore.

Litman notes that if enforcement is seen to be incomplete and uneven, people become less willing to apply for permission for what they currently receive without any such permission—or to pay for what they currently receive free. (more…)

Professor Joseph Weiler has now written about the judgment in the criminal libel case brought against him in a French court. A decision was handed down by the Tribunal de Grand Instance de Paris on 3 March 2011.

The details of the matter are outlined in an earlier post. In short, Professor Weiler was sued as editor of an online international law journal regarding a book review posted in the journal’s book review website. The book review was written by German academic Thomas Weigend, about a book written by Dr Karin Calvo-Goller. The review was not favorable.

The eventual result, after some correspondence between Professor Weiler and Dr. Calvo-Goller (please see my earlier post for details), was a criminal action for defamation brought in a French court against Professor Weiler. The trial took place in Paris on 20 January 2011.

According to Professor Weiler, the main arguments presented by the defense were:

1. The Court should not exercise jurisdiction, as the matter is too remote from France.
2. The Court should rule that the criminal complaint by Dr. Calvo-Goller amounted to an abuse of process.

The Court upheld both arguments. Regarding the jurisdictional issue, the Court appears to have ruled that the complainant had not sufficiently proved that the review in question was actually viewed in France during the period in which a criminal complaint needed to be filed.

Regarding the abuse of process issue, the Court noted that Dr. Calvo-Goller admitted to “forum shopping”. The Court noted that the choice of the French legal system was “artificial”, and was done because bringing the case in France would: be of lowest cost to her; give her the best chance of success on its merits, due to the nature of French law; and had the greatest potential to result in “both opprobrium and significant costs to the accused” (from an unofficial translation from the judgment).

Further, the Court noted that the review was not defamatory and that the complaint was brought in bad faith, particularly given her identity as a lawyer and someone who studied (and is thus familiar with) French law.

The Court awarded Professor Weiler 8,000 Euros in damages (approximately US$11,000). The damages will be donated to a charitable cause.

The full judgment in French and an English translation will be published on the journal’s blog in the next few days.

Update (4 March 2011): The Chronicle of Higher Education has published an article on the judgment, which includes a link to the judgment (in French), a copy of which was provided to The Chronicle by Professor Weiler.

Professor Joseph Weiler has won the defamation action brought against him in a French court, which I discussed last month here.

So far I have not been able to find any more details about the ruling, but once I do will write a longer post.

The final terms of reference for the upcoming Convergence Review to be conducted by the Australian government have been announced, following on the draft terms of reference provided for public comment in December.

At the Australian Broadcasting Summit this morning, Senator Stephen Conroy, the Minister for Broadband, Communications and the Ditital Economy, noted that the final terms of reference have been released. The focus of this review appears to be how best to regulate content that are accessible across a number of delivery platforms (television, computers, and mobile/telecommunications devices), rather than via a single means as in the past.

The terms of reference, which are now posted on the Department’s website, include:

–ensuring that the policy framework for media content and communications services is appropriate, and advising on ways of achieving it and on the potential impact of reform options on industry, consumers, and the community;
–looking at all relevant legislation and regulations implicated by the terms of reference (including, it appears, those outside of the Minister’s portfolio);
–considering both regulatory and non-regulatory measures to achieve the new framework;
–taking into account a number of issues when developing the new framework, including ensuring an innovative and effective media industry, the continued production and distribution of Australian content, developing appropriate ways to treat content that crosses international borders, and considering the appropriate ways in which radiocommunications spectrum is allocated.

Senator Conroy also remarked at the conference that the review committee will include Malcolm Long, who until recently was a member of the Australian Communications & Media Authority. Now an independent consultant, Long was also past Director of the Australian Film, Television and Radio School, and Managing Director of national broadcaster SBS, among other senior roles in the Australian media industry.

Update: The Department has announced that Glen Boreham, formerly Managing Director of IBM Australia, will be chairing the review committee. The third and final member of the committee will be announced shortly.

Today, at a (invitation only) conference in Sydney, Australia’s Attorney-General Robert McClelland announced Australia’s copyright reform agenda for the next little while. I wasn’t there, but a transcript of the speech is here. In short, the agenda is this:

1. On the issues in iinet, the AG believes that ‘an industry dialogue on this issue is the most productive way forward’. Apparently ‘The Government will look closely at the outcomes of any industry discussions’.
2. On Australia’s Safe Harbours, the AG ‘to consult on proposals to adopt a broader definition of ‘carriage service provider’.’ to broaden the availability of these Safe Harbours. There will be a consultation paper on this soon.
3. The AG’s Department will be considering the Copyright Advisory Group’s request for an additional exception to the anti-circumvention provisions, and will ‘invite submissions seeking views on whether any other new exceptions should be included, and I again invite those affected to take this opportunity to raise their issues.’ If you want to jailbreak your iphone, or anything else for that matter, now might be the time to think about it.
4. The ALRC will likely get a reference towards the end of the year on copyright. The terms of reference will have to be written not to overlap with other work (like the convergence review) (good luck with that). At least, the ALRC is likely to look at exceptions in copyright in the context of the online environment and whether the correct balance exists’

Interesting times.

What is the line between academic criticism of a work and defamatory statements about the author? A French court is currently considering this issue.

In 2007, a book review website, www.globallawbooks.org, published a review of a book by Dr. Karin N. Calvo-Goller about the International Crimimal Court. The review, written by Professor Thomas Weigend, then Director of the Cologne Institute of Foreign and International Criminal Law and Dean of the Faculty of Law at the University of Cologne, was not particularly favorable. Professor Weigend’s criticism included:

…in the main part of her book [the author] simply restates the contents of relevant parts of the ICC Statute and the Rules of Procedure and Evidence…

…this exercise in rehashing the existing legal set-up is particularly unproductive since a large part of the volume consists in a reprint of the ICC Statute and its Rules of Procedure and Evidence…

…analytical nuggets are all too rare…

…[the author’s] conceptual grasp of the “inquisitorial” systems seems insufficient for a critical analysis that might go beneath the surface…

However, the review clearly states that the fault is as much with the editor as with the author of the book:

Karin Calvo-Goller has undoubtedly invested much time and effort into this book, which – but for regrettably sloppy editing – might well serve as a first systematic introduction to the procedural issues confronting the ICC.

The review is certainly not at all favourable. But neither is it a personal attack on the author.

On the other side of the matter from the author is the editor of the journal in question, Professor Joseph Weiler. Professor Weiler is no recent entrant to the academic scene. He is a well-known and respected scholar, currently University Professor at New York University, as well as the Joseph Straus Professor of Law and European Union Jean Monnet Chair at NYU School of Law. He was previously a professor at Harvard Law School and the University of Michigan Law School, and has published widely–as well as having extensive experience as an editor of academic works. His full qualifications and experience, as both an academic and legal consultant, are too numerous to summarise here.

So how did Dr. Calvo-Goller respond to the poor review? First, she asked Professor Weiler, as editor, to remove the review from the journal’s website. She was unsuccessful in doing so, even after asking a second time. All of the details are set out here. A few months later, Professor Weiler was asked to appear before a magistrate in France to respond to charges of criminal defamation brought by Dr. Calvo-Goller.

A description of the hearings and how the suit came about, as told by Professor Weiler, is available here.

The trial has now taken place, and a verdict is expected on 3 March 2011.

I should disclose that I am a former student of Professor Weiler. But the motivation behind the suit does not seem right to me. Does claiming defamation in the form of an unfavourable book review strike anyone as discouraging free expression and communication? At the very least, it seems to be an inappropriate use of the legal process. Bad reviews of one’s work, while upsetting and sometimes damaging, also appear to be a fact of academic life.

At the very least, as the New York Times has noted, damage to Dr. Calvo-Goller’s reputation may not only be achived by the poor review, but by the criminal complaint itself.

Only hours before major planned protests on Friday morning (28 January), the Egyptian government has shut down virtually all Internet access going in and out of Egypt, as well as SMS and Blackberry access. It seems that access to social networking sites such as Facebook and Twitter may have taken place as early as Tuesday.

In two cities, Suez (north of Cairo) and the northern Sinai area of Sheik Zuweid, mounting protests have been calling for President Hosni Mubarak to step down. It has already been reported that social networking websites, particularly Facebook, have been used to build support and encourage participants in rallies this week–including large ones planned for Friday morning.

By Friday morning local time, reports confirmed that Internet traffic in and out of the country had slowed to a trickle. Renesys, a specialist in analysing Internet routing data (and a self-described “authority in global Internet intelligence”) has further confirmed that very early Friday local time, virtually all routes to Egyptian networks in the Internet’s global routing table were simply withdrawn,

leaving no valid paths by which the rest of the world could continue to exchange Internet traffic with Egypt’s service providers. Virtually all of Egypt’s Internet addresses are now unreachable, worldwide.

Renesys observed that oddly, Internet infrastructure company Noor Group was unaffected by the shutdown, with inbound Internet traffic via Telecom Italia arriving as usual. It also noted that the Egyptian Stock Exchange was still online at a Noor address. Their analysis revealed that the Exchange is normally reachable at four different IP addresses:

Internet transit path diversity is a sign of good planning by the Stock Exchange IT staff, and it appears to have paid off in this case. Did the Egyptian government leave Noor standing so that the markets could open next week?

It appears that Internet traffic solely within Egypt has remained unaffected. Some reports have also said that savvy users have found ways around the Internet blocks, using proxy servers and other methods.

Update, 29 January:

Further reports of the situation in Egypt have been made, with The New York Times suggesting why the almost complete removal of the country of over 80 million people from the Internet was possible at all. Not only was the Egyptian government instrumental in encouraging the spread of the Internet throughout the country, but its relatively liberal nature gave people little reason to suspect that the Internet could or would be shut down. As a result, the handful of Internet service providers in Egypt were not ready with a workaround. Ironically, it seems, some of the people who were expressing their frustrations with the government online only may now be joining others in the continuing demonstrations.

There is certainly a value to social networking websites. Some serve professional networking purposes (such as LinkedIn). And others, like Facebook, have proved to be an effective means of connecting with old friends (for me, including ones I’d lost touch with completely).

It’s not news that we use these websites at our own peril. But here’s a couple of more reasons to be wary, both legal and technical.

A new Facebook notification? “You’ve been served!”

In what seems to be a legal first, a judge of the Australian Capital Territory Supreme Court has upheld the right of lawyers to serve legally binding court documents and notices by posting them on defendants’ Facebook sites.

Plaintiff MKM Capital applied to Master David Harper of the Supreme Court to use Facebook to serve notice of a judgment on two borrowers who had defaulted on a loan. The defendants had failed to repay a loan of $150,000 they borrowed from MKM last year to refinance their mortgage. After being granted a default judgment for the loan amount and for possession of the house after the couple failed to appear in court to defend the action, MKM then had to locate the defendants and serve them with the papers.

After hiring private investigators and 11 failed attempts to find the couple, the lawyers identified the Facebook profiles of the defendants, convinced the court that those profiles did in fact belong to the couple, and satisfied the court that communication through their Facebook pages was a sufficient means of communicating with the defendants.

Wormholes

It was just a matter of time before social networking websites became infected with computer viruses. And now it’s happened: Koobface, a Trojan worm, has been making its way through Facebook and to other social networking websites. The worm generates profile comments that encourage users to click through to an external website that pretends to offer a video to view, but then says that an upgrade of Adobe Flash is necessary first. Users who click on the “install” button infect their computer with the virus. The result? Enabling identity theft and click fraud.

ZDNet has some interesting discussion of different ISPs’ policies.

As I noted yesterday, a legal action has been launched by some 34 applicants from the television and movie industry against Australian ISP iiNet, alleging that iiNet has authorised copyright infringement by failing to take (adequate) steps to prevent sharing and downloading of films and TV shows via protocols like BitTorrent. A kind little birdie has sent me a copy of the Statement of Claim, so I have a bit more info. It makes for some interesting reading.

There are a number of interesting questions at the heart of this potential case:

1. What, exactly, are ISPs required to do when they become aware that users are potentially infringing copyright? Do they have to terminate people alleged by the movie industry to be ‘repeat infringers’?
2. How much responsibility will Australian courts put on intermediaries for ‘doing something’ about copyright infringement? So far, Australian courts have been pretty ready to impose liability on people they thought were ‘profiting from copyright wrongdoing’ – Kazaa with its P2P network, or Cooper with his ‘mp3sforfree’ website and his ISP host. What about others whose nefarious or infringing purpose is not so obvious? What, in other words, of more ‘ordinary’ service providers?
3. When the legislation requires that ISPs, in order to ‘gain absolution’ or immunity from damages, should ‘adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers’ – what does that really mean? Is it sufficient to terminate only those found liable for infringement? Is the court allowed to determine whether the policy is real or sufficient?

Politically, there are some equally interesting questions. Will the Internet industry respond to the lawsuit by looking for a settlement deal that goes some way towards creating the kind of ‘notice and terminate’ system that copyright owners have been pressing for? Will the government’s past approach of protecting ISPs from liability in order to further the digital economy hold? Or, has the tide turned: are we now in a climate where the courts, like the government, decide to hold ISPs to a higher standard, just as the government is trying to get ISPs to engage more actively in filtering adult content? And is this all just an attempt to promote a certain filter that purports to filter both porn and copyright infringement…?

More thoughts on the law side of things over the fold. (more…)

We’ve been expecting this might happen for a while. Now it has. From the Australian Federation Against Copyright Theft media release:

“Today, seven leading film companies and their affiliates and licensees filed a legal action against iiNet, a major Australian internet service provider. The action was filed by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network, the Australian licensee of some of the infringed works. The companies seek a ruling that iiNet infringed copyright by failing to take reasonable steps, including enforcing its own terms and conditions, to prevent known unauthorised use of copies of the companies’ films and TV programs by iiNet’s customers via its network.”

In other words, it’s the argument that an ISP is authorising infringement of copyright. Without seeing the statement of claim, can’t say much more, except this: this is the next ‘upping of the ante’: designed, no doubt, to increase the pressure on ISPs and the Internet Industry Association to negotiate on the so-called ‘three strikes’ proposal for a system for terminating internet access of alleged copyright infringers.

Interesting times. (and yes, I’d love more information if anyone has any…).

On Monday Susanne noted that ACMA had released their internet content filtering report. Well, as you can imagine, there’s been some blogospheric and professional reaction:

1. SAGE (the Sysadmin Guild of Australia) has slammed the artificiality of the methodology used (press release, media report);
2. Somebodythinkofthechildren has produced a great summary set of links to other reactions, here (hat tip: Peter Black).

On 28 July, the Australian Communications and Media Authority released its report which sets out the findings of the closed environment testing of ISP-level filters conducted in 2008. The Closed Environment testing report followed hot on the heels of the Developments in Internet Filtering Technologies and Other Measures for Promoting Online Safety report released in February 2008. The latest report shows that the filtering technology has definitely improved in terms of the accuracy of what it blocks and the impact it has on network performance since the NetAlert Ltd trial conducted in 2005. The conclusion, though, is that the filtering technology has not developed sufficiently to be able to tell the difference between legal and illegal and/or inappropriate content carried via non-web protocols (such as peer-to-peer and instant messaging).

The Internet Industry Association, CHOICE (the Australian Consumers’ Association), the Australian Library and Information Association (ALIA) and Australian Digital Alliance (ADA) have today expressed their concern about the possible contents of the ACTA negotiations that I’ve discussed a few times (most recently here). They have also agreed a set of six principles which, in their view, should guide the Australian approach to the negotiations:

1. Transparency and accountability (all stakeholders should see and comment on text before it is concluded)
2. Presumption of innocence (no enforcement, civil or criminal, without independent findings of infringement)
3. Proportionality (all enforcement measures to be proportionate to the seriousness of any infringement)
4. Consideration of impact on other treaties and laws (no doubling up or inconsistency with Australia’s existing obligations)
5. Avoiding the prescription of surveillance technologies for IP enforcement
6. Safeguards against liability for intermediaries (such as educational
   institutions, libraries and Internet Service Providers)

More detail in the principles document, which can be downloaded from the IIA or ADA.

Press releases:

1. IIA
2. Australian Digital Alliance
3. CHOICE

Note: I am a member of the board of the ADA.