LawFont.com

Update: The move to a new host is completed, and I think things are working properly now. Please drop me a line at lawfont @ gmail.com if not. Thanks.

Just to let our readers know: I will be moving LawFont to a new webhost over the next few days. There may be periods of downtime, and it is possible that comments on posts might fall into a black hole (but I will try to do my best to prevent this).

Other than this, the changes will be completely behind the scenes, and so the web address (still www.lawfont.com — no need to change your bookmarks), the look and feel, etc, will all be the same.

Apologies for any inconvenience caused.

You may also have noticed comments are back on after a massive spam blitz over the last couple of weeks. I am still tweaking it, but we’re again down to one or two per day.

And then I have a few further improvements planned for after that.

Regular readers may recall that a little while ago I blogged about the Exposure Draft which contained the new Enforcement regime for copyright law. You can find that post here. It was pretty brief. But it was quite critical of one key thing, and that is the introduction of offences of strict liability.

Offences of strict liability, by the way, are offences which do not require a mental element, or mens rea. That is, you don’t have to intend to do wrong, or be reckless about whether you are doing wrong. You just have to do the act.

I should note, that that offences of strict liability are not the same as offences of absolute liability. In Commonwealth Criminal law, offences of strict liability do have a defence mistake of fact. That is, if you (a) considered whether or not facts existed, and (b) are under a mistaken but reasonable belief about those facts, and (c) if the facts existed, there would be no offence, then you are ok. Note, you must turn your mind to the issue, for the defence to apply.

Anyway, I’ve had some feedback on that particular post. Yesterday, I was having a bit of an argument with someone about whether the introduction of strict liability was really that big a deal. Today, I was speaking to someone else again. Combined, my interlocutors raised several points:

1. We have strict liability offences for other property offences. what’s different about copyright?
2. The offences apply to commercial conduct, not the kinds of things that ordinary people do, and it is right to treat commercial operators who are infringing copyright on a commercial scale as criminally liable.
3. Strict liability may be needed because you have people – say, the lowest link in the copyright infringement foodchain, like the guy at the market selling the infringing stuff – who may not know what they are doing is infringing, who never turn their minds to the issue at all. Or perhaps we have the guy with the backyard business in burning CDs. He’s not thought about copyright either. But what he is doing is wrong, and we want a way to send that message without being completely draconian about it and sending the guy to jail. On this reasoning, what we want, perhaps, is a system of graded penalties – in particular, low-level on the spot fine type penalties – that can be used against this kind of individual, without the whole rigmarole of the court process, but which can be used to send a clear, direct, immediate message that this is wrong, criminal, infringement.
4. It is not feasible, or desirable, to have just one level of offence and one level of penalty. Far better to have a graded system of strict, summary, and indictable offences – with only the latter two carrying the risk of jail time.
5. What are the situations where, under these laws, they might have unintended reach or consequences? Can you identify situations where the laws would reach, but the resulting penalty would be inappropriate?

These are valid points, and valid questions. They require some thought, and some words, to answer them. I could do it directly, via email, to my interlocutors. But I also know, from speaking to various other people on the phone, that the criminal provisions are one area that people have not had the time, or the understanding, to consider in depth. 87 pages of provisions, which are repetitive, and written in an unfamiliar style, are hard to analyse in a very limited period of time. So I’ve decided to blog my issues, and questions, in the hope of offering people some thoughts, some issues, and starting, if appropriate, a conversation if my fears are considered unfounded. I attempt to do so over the fold. But I note this qualification: if any of the following is incorrect, I apologise, and offer to correct it – just email me. (more…)

Regular readers may recall I’ve blogged about the Grant case – a Federal Court case concerning the Patent Office’s refusal of an innovation patent for a method of structuring trusts etc so as to minimise tax. In general, when I’ve told people about this case, the reaction has been – what, someone tried to patent something like that? And it’s going to court even?

And yet, look at this Friday post from Public Knowledge. Apparently, in the US, the newest practice in the patent field is the patenting of tax strategies, or advice on how to avoid paying taxes: that is, individuals and corporations are patenting tax strategies as “business methods.”

In Australia, these things are not patentable. (more…)

One interesting case that started its hearing today in the Federal Court in Australia – that a few people have been emailing me about – is the IceTV case. This case is all about compilations and copyright. The case is generating comment in the Australian blogosphere: Peter Black’s coverage from Sunday, and Joshua Gans’ post reproduced in Crikey today. Black provides some interesting background on the case, and in particular, on the attitude of media players other than Channel Nine – that is, the other people who did not sue. Just goes to show that so much about our caselaw is a result of plays and concerns outside the legal system. (don’t forget that Nine was the initiator of legal action in our most significant fair dealing case of recent times, The Panel case, too). Gans is an economist, so you should ignore some of the legal conclusions and speculations he makes, but he rightly highlights that at heart, we do have a serious potential competition issue here, particularly if Nine were to win. A few of my thoughts overleaf. (more…)

And apologies for my not posting over the past few weeks — I recently changed jobs and am working things out with my new employer. I hope to be back soon!

Apologies for the spam deluge that has been hitting comments lately. We’ve turned comments off until we decide how to deal with the issue. Comments on my posts can still be placed on Weatherall’s Law, or emailed to us of course!

So there was a bit of to-ing and fro-ing on Thursday, after I found out about the new legislation in copyright before I was meant to. Many other people had found them too – before they were officially released. Lots of people downloaded them, so further secrecy was pretty useless of course.

So now we can all officially say:

1. The draft legislation for copyright exceptions (outcomes from the Fair Use Inquiry), and new laws on copyright enforcement (two bills) are now available online, officially, here.
2. According to the e-news, The bill as a whole will be referred to the Senate Legal and Constitutional Affairs Committee (not, notably, the committee which considered TPMs before, the House of Reps Legal and Constitutional Affairs Committee).
3. if you want to make comments now, you can make them to AGs. If you want to make comments to the Senate LACA, you can make them sometime after 10 October.

Enjoy.

Ironically, I am teaching a Masters Course on Australian Copyright Law at the University of Melbourne this week, intensively – 9 to 5. So I will be very busy all week, but will fill you in on any comments and analysis that come up out of those classes.

I’ve been getting hassled by a few people to respond to a particular issue – or rather, two related issues, arising from the current Exposure Draft of Australia’s new DMCA:

1. Does the TPM Exposure Draft, as drafted, actually deal with the Lexmark/Skylink ‘issue’ (that is, does it solve the ‘TPMs used to control aftermarkets’ issue); and
2. Are the interoperability provisions actually useless, and if not – or indeed, if so – what do they mean?

These issues are of real importance in the Exposure Draft, and for many stakeholders. So let’s have a go at them, shall we? The first one we’ll have a go at is the Lexmark/Skylink issue. The next post – the more important one – deals with the interoperability issue. (more…)

Now we’ve all had a bit of time to digest the government’s TPM Exposure Draft, it’s time for a few more comments and thoughts.

My last post on this was very much an initial ‘cut’ – comments after a fairly short period of reading and thinking and trying to piece the whole thing together. It was written by a lawyer, like a lawyer – testing the text for inconsistencies, issues etc. Of course, that made it one of those posts which is just really difficult to read for everyone else. Despite a couple of years of blogging now, sometimes, I still find it hard to write right, right?

It’s time for a different approach. With submissions on the Exposure Draft due next week, I imagine there are at least a few people out there thinking – well, ok, but what does it all mean for me? I want to look at the Exposure Draft from the perspective of a few different groups who might be interested:

1. Consumers
2. Educational Institutions
3. Galleries, Archives, Cultural Institutions
4. Governments (State/Federal);
5. Media organisations/broadcasters; and
6. Programmers and geeks, especially of the open source variety.

These posts will come. Most immediately, we’ll start with consumers.

A further piece of the puzzle has been published: the government has now published its Draft Regulations to go with the TPM Exposure Draft. The purpose of the regulations is to set out further exceptions being proposed to the anti-circumvention laws.

Further analysis once I’ve read through…

As I and others have noted: the Australian government has finally released the Exposure Draft of the OzDMCA: the Australian version of the DMCA anti-circumvention law, required as a result of the Australia-US FTA. It’s a big, complex piece of legislation, on a really hard area. What follows are my first thoughts on the Exposure Draft. I’ll be interested to hear what other people think. None of what follows represents a concluded view. There’s just too much there to have reached that point yet.

In summary, I think that the AG’s Department has written a piece of legislation which aims to be narrow in its application, and which aims to exclude from its clutches technologies and acts that are not related to copyright. Under this law, we will not be getting garage door opener cases or printer cartridge cases. Clearly, someone in government was listening to concerns raised by opponents of the legislation; to the LACA in its critical report; perhaps to the High Court in the Stevens v Sony case. There is a lot of language in here that seeks to tie the legislation to copyright.

Nevertheless, the government has also:

1. Written a complex piece of legislation, aspects of which are very subtle and which are going to take a while to work out.
2. Not fixed the region-coding problem: it is highly likely that region-coding technologies will still be protected, and circumvention of these banned;
3. Not fixed the exceptions problem: if you have a right to circumvent an access control, you are still going to either (a) need to be a geek or (b) need to look overseas to make use of it, I suspect.
4. Continued the present trend of writing highly complex legislation which will be very difficult for the average person to understand.

Over the fold: more comments. (more…)

Quite literally.

Let’s face it: when someone decides to issue a cease and desist against children’s party clowns, you just have – um – laugh. I can just see it now: instead of the cream pie, clowns will splat lawsuits in each others’ faces. Oh, and instead of jumping in and out of a little Mini Minor car, clowns will get in and out of a large lawyers’ briefcase…. oh, enough already. It’s Friday.

You may have noticed a few little changes to LawFont over the last week:

1. You can now click on an author’s name to see all posts by that author (I will soon make the underlining of the link a little more obvious)

2. There are now small buttons to help in bookmarking/submitting the URLs of our posts to various online sites. These are only visible in the view full post mode – for longer posts, you get there by clicking on “(more…)” or on the post’s title; for shorter ones, just the title.

I have also tweaked the comment spam filter – again, I don’t expect too many problems, but if you experience any, please contact me on lawfont at gmail dot com.

Any further feedback or suggestions also welcomed!

Just a short note to let you know: we’ve been getting a lot of comment spam over the last few days (and many, many other blogs are experiencing the same). It appears to be part of a concerted new effort by spammers (mostly sellers of dodgy pharmaceuticals), who are starting to find ways around the most common anti-spam protection. Fortunately, the setup we use at LawFont has let only a handful of this trash actually show (about 2%), but very many are getting caught behind the scenes, requiring time and effort to clean up.

I’m going to take action over the next couple of days to try to prevent any more getting through. I think I can do it without breaking anything, but if anyone experiences any problems accessing the site or posting comments over the week ahead, please drop me a line at lawfont at gmail dot com. I also have a few other tweaks and upgrades planned, which I will try to roll out over the coming few months (work permitting).

The Government, in the budget, has quietly shelved proposals for a resale royalties scheme – despite recent introduction in the UK and a recent private members’ bill. The idea has gone because ‘It would bring little advantage to the majority of Australian artists whose work rarely reaches the secondary art market and would also adversely affect commercial galleries, art dealers, auction houses and investors.’ Hat tip: Warwick Rothnie.