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I was in Canberra this week, not just to speak to the ACT Society for Technology and Law (about P2P stuff), but also to talk at an ADA forum on the forthcoming OzDMCA (our new anti-circumvention laws).

Two things I learned at the forum. (more…)

Yesterday, I gave a talk in Canberra for the ACT Society for Technology and the Law (thanks for the invite, guys) about P2P file-sharing and liability for copyright infringement. One of the things I mentioned in that talk was the LimeWire suit, and one of the questions I got was about how our law of authorisation of copyright infringement mapped against US law. For people wondering about that question, one very good source is the paper by Jane Ginsburg and Sam Ricketson, Inducers and Authorisers: A Comparison of the US Supreme Court’s Grokster Decision and the Australian Federal Court’s KaZaa Ruling.

But it’s also worth looking at this post by William Patry, and the associated papers: the filing in the RIAA v LimeWire case, in which the RIAA are pleading each different form of liability that arises under the US law. (more…)

I have been asked by a reader about DVDs: specifically, I’ve been asked about whether users infringe copyright when they watch a DVD bought outside Australia. As my reader noted, the issue might be important because the argument about region coding – and in particular, the argument that new laws shouldn’t enforce region coding – depends on the view that playing material made for, and purchased in other geographical regions is a legitimate activity.

Now, it would be very ironic if there were any infringement here. After all, it is the government which has made comments that copyright law should not ‘stop people from doing legitimate things with legitimate copyright material’, and that ‘copyright law should not unduly intrude into the private sphere’.

However this, dear readers, is what is technically known as a nasty difficult question. No, really. That is because answering it requires us to delve into all kinds of complicated, interconnecting parts of the Australian Copyright Act; it also requires us to think about some of the recent caselaw. More detailed, painful legal analysis over the fold. (more…)

IPRIA has just published its most recent Australian Developments Bulletin (the email has come out, the website doesn’t appear to reflect this yet, but will go up here). Reading through it, one thing that jumps out is the number of reviews going on at the moment (and here’s me thinking that we’d had enough in the last little while….). So amongst the announced reviews are:

1. The AIC intellectual property crime and enforcement research: which I’ve already mentioned on this blog;
2. an ACIP review of post-grant patent enforcement strategies; in which ACIP expects to circulate an Issues Paper in late September 2006 with a request for written submissions in early December 2006. ACIP also expects to hold consultations in early 2007; and
3. an ACIP review of enforcement of plant breeders’ rights, in which ACIP expects to circulate an Issues Paper in early October 2006 with a request for written submissions in early December 2006. ACIP also expects to hold consultations in early 2007.

Is anyone else detecting a theme? (oh, and if you are wondering where poor old trade mark is in all of this, we had that review, relatively recently, by ACIP, although the final report wasn’t, in the end, all that much about enforcement. See here).

This is an interesting story, from Larry Thompson, the Engineering Librarian at Virginia Tech, regarding DRM restrictions on SAE Digital Library, apparently a set of technical papers used by engineers – and engineering academics and students.

The DRM which SAE is proposing will apparently allow digital access only while a computer is connected online: it will not be possible to save copies to computers – if you want ongoing access, you have to print. How very 20th century. According to Larry Thompson, Virginia Tech is now considering what to do: as he puts it,

‘Do we want to spend thousands of dollars on digital format papers that users can’t save to their computers? The professor who wants to read an SAE paper while jetting to Europe for a conference will need to print out the paper … If one publisher does this, it may not be too bad. But what if every publisher adopts this policy, and the professor wants to take 50 papers to read during the flights? Do we want to pay roughly double the cost for a corporate license, in order to legally cover the walk-ins who might use the product, because as a land-grant university our library computers are open to the public?’

Read more here.

As we await the implementation of the OzDMCA, it’s been interesting to follow the debates, over in Europe and elsewhere, about Apple’s iTunes/iPod link. The basic issue here is that iTunes-purchased music can only be played on Apple iPod players – unless, of course, you hack the Apple FairPlay encryption (which can be done using various well-known methods).

The issue, of course, is that if someone buys a whole bunch of iPod music, then you get lock in – they’ll be more reluctant to move to another player. The technological protection, in other words, might serve to raise barriers to entry in the music player market. It’s attracted a bunch of attention recently. Here’s the brief summary:

1. A few people got very excited when Microsoft announced it would be coming out with a new player/music service, so far named Zune, and that, to get out of this lock-in system, Microsoft would be looking to replace, for new users, any music they’d bought on iTunes. Have a look at the debate over on Freedom-to-Tinker (Post 1 and Post 2);
2. In France, we had the DADVSI law – originally seen as potentially ‘forcing’ FairPlay open, the final form of the law has, according to reports, seen the provisions on interoperability eviscerated (see the Wikipedia entry on DADVSI here)
3. Now, in Scandinavia, we have news today that Apple Computer Inc. met a Tuesday deadline with a 50 page response to Scandinavian regulatory claims that Apple is violating their laws by making its market-leading iPod the only compatible portable player for iTunes downloads. So far, the response is confidential.

What’s that phrase? Stay tuned? And perhaps watch for what the effect of any Australian law will be on all this…

A friend has just reminded me that today is the last day you can vote for your favourite Australian trade mark, here, to celebrate the centenary of the first registered trade mark in Australia.

Quick!

Today’s funny moment is from The Australian, which is carrying a story that French cosmetic company L’Oreal has won a copyright suit against a Dutch company for copying a perfume. The story appears to have originated in The Times, but does not as yet appear to have been widely syndicated. The bizarre thing, of course, is how such a claim could be brought in copyright. (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.

Well well well. All the news today reports that Kazaa has settled with the American Music Industry, agreeing to pay $US115 million ($A151 million) and convert to a legal business model with licensing arrangements to be negotiated with record labels (see The Age here, Washington Post here; Techdirt here)

Now I can’t help but wonder whether we have several Federal Court judges who, having spent quite a few days in February hearing the matter, and perhaps a bit of time writing a judgment, are now a little deflated.

Guess we won’t be getting a Full Federal Court view on what constitutes authorisation of copyright infringement. The rather spare reasoning of Justice Wilcox will stand.

Sigh. And I was so looking forward to dissecting another big copyright judgment or two.

Update: more news from Techdirt: apparently some of the settlement is being paid by the Kazaa founders.

Update 2: I’m told by a reader that I shouldn’t despair (yet). As one reader pointed out, the court can still publish reasons where there are ‘principle[s] of general importance’, and an appeal can only be discontinued with leave of the court (which presumably could be refused). And in any event, the appeal in Cooper – another copyright case also raising authorisation issues – is due to be heard in early August…

Update 3: I should have noted before: Peter Black on Freedom to Differ has also commented.

Update 4: First thing this morning: come in to work to find all the newspapers and US blogs reporting the Kazaa settlement. 8:24am: blog the story on Weatherall’s Law, then LawFont. 10:30am: receive notice from the Australian Copyright Council regarding the settlement. 4:48pm: receive Freehills Intellectual Property Update notifying me of the settlement. Observations: (a) the ‘more traditional’ sources of IP news (law firms, Copyright Council) are pretty quick these days; (b) do you think blogs – as part of the ‘always on’ news and information cycle – have anything to do with this? (c) I’m going to be out of a blogging purpose if law firms become more like blogs… won’t that be good!

Update 5: more rather amusing commentary on the settlement from Geeklawyer, and sensible points from Technollama – like, this is hardly a victory, right?

Warner Bros. has joined a number of other television broadcasters in providing some of its programming for sale on Apple’s iTunes. A number of networks, including Fox (owned by News Corp.), ABC (Walt Disney Co.), NBC (Universal), CBS, and MTV (Viacom Inc.), along with Warner Bros., together offer more than 150 television shows for US$1.99 per episode. The shows may be viewed on a computer or a video iPod. And what’s really interesting — it’s possible to subscribe to a current season of a television show (and not just repeats). (more…)

The SMH is carrying an article quoting a telemarketing industry spokesman as saying that many Australian companies have chosen not to renew contracts with Indian call centres after July 1. The proffered reasons are fear of a consumer backlash, and the forthcoming introduction of the register.

Choice quote: “A lot of organisations realised the damage being done to their brand by this form of telemarketing, especially in telecommunications.”

From IP Australia’s news service:

‘The Australian Institute of Criminology (AIC), Australia’s pre-eminent national crime and criminal justice research agency, is currently conducting a study in relation to intellectual property crime and enforcement in Australia. As part of this research, the AIC is collecting data on the extent to which intellectual property (IP) crime exists and its impact. The research will identify options for the Federal Government’s response to piracy and counterfeiting in the future.

If you wish to assist in this research by providing your informed views on the type, amount and impact of IP crime in Australia, we invite you to contact Alex Malik a consultant researcher with the AIC by August 4, 2006, at alex.malik@aic.gov.au In your note, please tell us about yourself and your organisation, and explain why you believe you may be able to contribute to this research.

It appears that all they want to know about for the moment is who you are and what information you have: presumably if you want to provide information, you’ll have some time to do it after this rather short deadline…

Readers may recall that one of the big issues in Australia’s FTA negotiations with the US was the issue of drug pricing, the pharmaceutical benefit scheme, and drug listing. This was one issue where the Australian government stood its ground – to some extent (of course, there’s plenty of debates about whether the ground they gave was too great – see Peter Drahos’ work on this generally, particularly this working paper for the Evatt Foundation).

Well, now it’s apparently Korea’s turn. (more…)

One of the things I said just recently, in the Unlocking IP Conference at UNSW, was that one issue for Creative Commons, in seeking acceptability for use in the public sector, is the rhetoric. I argued that sometimes, in their eagerness to convince ‘the masses’, Creative commons mateiral has a tendency towards rhetorical excess and a ‘boosterism’ that isn’t a comfortable fit with either the public sector, or, indeed, with Australian culture more generally.

I wonder if other people agree with this point? (more…)