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Judge Eduardo Robreno of the United States District Court for the Eastern District of Pennsylvania has handed down a very interesting judgment dismissing two motions by Linden Labs (the makers of Second Life) in a lawsuit brought by lawyer Marc Bragg.

Bragg signed up to Second Life in 2005. He said he was induced into “investing” in virtual land by representations made by Linden and Rosedale in press releases, interviews, and through the Second Life website, and paid real money as “tax” on his virtual land. (more…)

David Shavin in the High Court recently:

It is not an overstatement, although some may regard it as slightly melodramatic, to say that there are aspects of trade mark law which can be seen to be inexorably sliding out of control. This Court, and only this Court, can bring it back to its true course. In a series of decisions culminating in the decision in this case, successive Full Federal Courts have failed to appreciate the true nature of a trade mark as defined by section 17 of the Act.

The High Court was not convinced, refusing BP special leave to appeal from the Full Federal Court’s rejection of its trade mark application for green as the predominant colour of service stations. According to Justices Gummow and Hayne, t’o the extent that the applicant seeks to assert that the Full Court made errors of law in the construction of provisions of the Trade Marks Act 1995 (Cth), we are not persuaded that these contentions enjoy sufficient prospects of success to warrant a grant of special leave’. This is interesting, as the Full Court decision certainly isn’t without its critics.

I opened the Fin Review today to see a double page ad spread for the new afr.com. Fantastic, I thought; they’ve ditched the awful experiment that was AFR Access and reverted to an html-based site that I can actually use.

For those who never subscribed, the Fin Review originally had one of the best on-line services (see a sample view), with some stories free to all users, and some only available to subscribers. I used the free service since 1996 or 1997, and then had a subscription via my former employer, which I used daily.

Then for some reason Fairfax decided to switch to a flash-based version in mid 2006, called AFR Access. I tried it a couple of times, and gave up: it was impossibly slow, unwieldy, and offered no benefits at all over the former version — while introducing plenty of needless annoyances and a poor user interface. Apparently I wasn’t the only one who was put off, as someone a few months ago mentioned a Crikey story that there were only 2,000 subscribers, about 1/10th of the budgeted amount. (Just found it – here it is.) (more…)

To continue the renewal, we have also updated the site’s look and feel. Not a huge change, but I think it’s cleaner and quicker-loading, and I hope you agree.

There is also a “mobile” skin, for those accessing LawFont through a hand-held device, which reduces the amount of data loaded and formats better for a small screen — no need to select it, as it should kick in automatically(“WordPress mobile” from AlexKing.org).

There’s been quite a bit of activity over the past few weeks with respect to Australian press freedom and the impact of the anti-terrorism legislation passed back in 2005.

Fairfax’s Chairman, David Kirk, recently addressed the Australian Press Council. Mr Kirk had quite a bit to say, including announcing that Fairfax will join News Ltd, the ABC, Free TV Australia and SBS in the recently formed coalition “to preserve, protect and promote press freedom in Australia”. The campaign is called “Australia’s Right to Know” (I’ll call it ARK) – it’s a lobby group which is Canberra bound. There was some chat about it on ABC The Media Report yesterday with Lucinda Duckett of News Ltd on-air to explain the reasons behind ARK. Seems source material is harder and harder to get these days. Clearly no news is not good news. (more…)

Although our frequency of posts has dropped off since the second half of 2006, things have been going on behind the scenes at LawFont.

Kim has recovered from her 2006 overload, and will be blogging primarily on Australian intellectual property issues. Sarah hopes to be back soon, and will be blogging again on a range of issues, mostly on developments outside of Australia.

Finally, we’d like to formally welcome our new blogger. Susanne is particularly interested in the regulation of communications and media content, counter-terrorism and national security regulation, and administrative law. We are very happy to have her with us!

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. ‘

Crikey today is reporting that:

In a move thought to be unprecedented in global sport, photographers from international news agencies like Reuters, AFP, AP and Getty Images have been locked out of AFL games for season 2007. Their work has been replaced by an agency created by the AFL to manage the League’s press photography. Geoff Slattery Publishing, publishers of the AFL Record, has the contract to manage AFL photography. But the scheme has raised serious questions about press freedom and the right of news organisations to report on public events.

So this is bad, I’d agree, for all kinds of reasons that Crikey explores. But all I can think is – what a great opportunity for amateur photographers to take and sell photos to the press! Citizen journalists unite.

UPDATE:Crikey have another story about the AFL move today – which points out attempts by others – in particular, FIFA – to do something similar. Apparently, so far attempts to do this kind of thing have led only to tears (and rapid backdowns). I await the next development…

And another thing, about the November government draft of a new law for internet censorship (see my previous comments here and Pete Black’s comments here).

One thing that is fundamentally wrong with the government approach is the ‘cover everything, create specific exemptions’ approach. The government proceeds by creating a default position that everyone doing anything online (even vaguely related to commercial life) is covered, and then creates a long list of exemptions so that certain kinds of sites are free from regulation.

Three serious problems with this approach:

1. The obvious problem: new kinds of sites are automatically censored. Since we don’t know what might happen online next, why make the default regulation? Why not single out the specific things you want to cover?
2. The ‘bob each way’ approach: for most exempt categories, the definition states that the site must fit the definition AND ‘comply with other requirements in the regulations’. This would enable the government at any time to impose additional requirements on, say, user-generated sites or search engines – by regulations, which can only be DISALLOWED, not amended, by Parliament. Ick.
3. Lawyers’ paradise. I foresee many arguments by people saying they fit within categories. That’s what always happens when you have a specific list. Again, ick.

Oh, and here’s a question. do you think massive multiplayer online games are covered by this regime?

Ah, censorship. What is it about censorship that brings out the silliness in legislators? Why is it that the idea of censoring the Internet gets people so excited they forget to work out whether the laws are at all sensible?

Crikey has today leaked a November draft proposed Australian Internet censorship law: the Communications Legislation Amendment (Content Services) Bill 2006. I’ve had a look. It’s unbelievable.

Crikey report that the bill has been redrafted. It had better be. Better still would be to forget it altogether. Because this draft doesn’t pass the laugh test. Really. It is inconsistent with fundamental values like freedom of speech and freedom of information; it is broad, draconian, and wouldn’t work, it is completely out of step with the way the Internet works (it seems to require pre-emptive monitoring of content by hosts before it even goes online). I think I’m back in the year 2000 – the last time this same government tried to write an Internet censorship law. More on why this draft is so bad over the fold. [update: Pete Black has also commented, along very similar lines to me, here]
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Interesting story hitting the press today on the use of Australia’s notice-and-takedown provisions under the Copyright Regulations.

Volunteer-type hosting service Axxs.org had to take down this site (now on an overseas mirror), after getting a letter from the NSW Minerals Council, alleging infringement of their copyright in the material on this website. More detail on indymedia.

Apparently, despite the requirements under the Copyright Regulations to “insert sufficient information to enable the carriage service provider to identify the copyright material in respect of which the infringement is claimed”, the lawyer letter didn’t attempt to actually state what copyright existed in – telling the ISP to do the identification:

“Content in which our client owns copyright may be viewed on it’s website, http://www.nswmining.com.au. We ask that you compare our client’s website to the offending websites referred to above. On comparison, you will see the copyright infringement issues that our client has with the abovementioned websites.”

I’m troubled by this, and not just because I’m pretty sure it is NOT the intention of the regulations that lawyers who write these notices outsource the identification of copyright material to the host or ISP. (“Look at the website”??? please).

I’m concerned because this isn’t one of those cases that notice-and-takedown was meant to be provided for: cases, basically, where someone has put up shamelessly infringing material online with no apparent social benefit. The notice here is aimed at some speech which is pretty clearly political, something which at least arguably would be protected under fair dealing defences of criticism and review and/or parody/satire. This is not why the Safe Harbours were put in there, and arguably, it’s an abuse of the process.

Maybe we need an Australian version of Chilling Effects.org to track this kind of thing.

UPDATE: Rising Tide, the people behind the website, have issued a counter-notice. Their press release is here.

UPDATE 2: Pete Black has commented. Note also that if you’re a barrister looking for something to do with your time, RisingTide are looking for some pro bono assistance…

The Sydney Morning Herald has an article on Vista’s EULA. The EULA (available here in PDF format) provides for Vista Home Basic and Vista Home Premium the following “additional licence term”:

USE WITH VIRTUALIZATION TECHNOLOGIES. You may not use the software installed on the licensed device within a virtual (or otherwise emulated) hardware system.

Leaving aside the issue of whether an EULA actually is a contract (as against an attempt to turn a copyright licence into a contract) a few interesting points emerge. (more…)

Random question for the day: where does the tortured language used in newspapers to describe offences with which people have been charged come from?

For example, in this article on 15 January, the SMH wrote of a man accused of raping a woman after hiding in her car’s boot:

“He was charged with aggravated sexual assault, aggravated detain person for advantage, take and drive conveyance and escape police custody.”

Only the first offence is reported in normal English. The remainder are described curiously ungrammatically. The terminology isn’t based — as one might initially suspect — in the language of the Crimes Act. So why use it? (more…)

Not before time, the UK has opened up the UK Statute Law Database (SLD) – the official revised edition of the primary legislation of the United Kingdom – for free, public use. This will be really useful: I’ve always hated trying to find UK legislation, and thought they really needed a proper AustLII. Hat tip: Boing Boing.

Various reactions to the linking is authorisation’ Cooper decision handed down yesterday by the Full Federal Court:

1. I commented yesterday (summary? ‘troubling’. ‘Have we, or have we not just had a very extended debate about copyright law in Australia? Was not one of the memes in that debate the idea that copyright ought to ‘work’ in a digital environment? Are not search engines, and links, fundamental to the way the Internet and digital environment work? Did all this debate completely pass the members of the court by?’)
2. Techdirt have commented (‘the idea that it’s the technology creator’s job to build in protections against infringement in how they design a tool is also extremely problematic in placing the burden on the technology makers. It’s a guaranteed recipe for slowing down innovation by putting in place both chilling effects against innovation and additional development costs’)
3. Boing Boing comments here (‘If that precedent were adopted worldwide, there would be no Google, no Wikipedia, no internet as we know it’)
4. Black comments here (‘I agree with Kim’)
   
5. The Age has the story here.

As you can see, the tenor of this commentary is – ‘shock horror Australian law says linking is infringement; Google’s in trouble’.

Take a deep breath. It’s important to appreciate the limitations of this decision. (more…)