Archive for the ‘Copyright’ Category

Copyright in bikini designs

Wednesday, April 23rd, 2014

Seafolly is in the news again: this time as the winner. In her last decision before retiring, Dodds-Streeton J has ordered that City Beach[1] pay Seafolly $250,333.06 by way of damages for infringing copyright in 3 Seafolly designs: the English Rose artwork, the Covent Garden artwork and the Senorita artwork.

The English Rose artwork and the Covent Garden artwork were both patterns or ornamentation printed on the fabric. The Senorita artwork, however, was in effect stitched on to the garment using shirring and smocking. Dodds-Streeton J, however, rejected City Beach’s defence based on sections 74 and 77 of the Copyright Act. Apart from all the other issues, her Honour’s application of the Full Court’s decision in the Polo/Lauren case struck me as particularly important.

Seafolly’s Senorita artwork:

321.12
321.11

City Beach’s Richelle embroidery:

321.13

The subsistence point

As you can see, the Senorita design is pretty simple in appearance. City Beach’s argument was that this simple design was the more or less inevitable outcome of using the type of industrial sewing machine used to produce it. According to the evidence, however, it involved significant trial and error to produce because smocking fabric was very difficult to work with, smocking did not always involve using triangles or diagonals and City Beach’s expert conceded “there was a huge array of different ‘cams’ which could produce an almost indefinite variety of patterns.” Her Honour rejected City Beach’s attack, therefore:

416 …. the Senorita embroidery was not the inevitable outcome of the operation of an industrial sewing machine. Nor was the work so rudimentary and simple as to be unprotectable because, in essence, there was no meaningful distinction between the subject matter and the form of expression.

The use of the sewing machines, therefore, appears to involve use of the machine to implement the human idea more in the vein of Coogi or a wordprocessor to record the text than as an automatically generated entity like the phone books in PDC. The second point made by her Honour seems to pick up the High Court’s point that the ordering of title and time of television program in chronological order did not involve sufficient creativity (or intellectual effort) to qualify as original.[2]

The copyright/design overlap

City Beach’s defence based on the copyright/design overlap provisions failed also, because the Senorita design when sewn on to the bikinis was not a corresponding design.

When the Designs (Consequential Amendments) Act 2003 introduced the current form of s 74 and s 77, it was hoped that the old problems about whether something constituted a “design” and whether it had been “applied to” an article had been sidestepped. All that was necessary, was to identify an artistic work which had been embodied in the features of shape or configuration of the product.[3] Rares J, at first instance in the Polo case adopted that too simplistic (as we now know) approach to find that the 700 or so stitches used to embroider the Polo logo on to a shirt qualified. This was set right by the Full Court on appeal.

Dodds-Streeton J acknowledged that the Full Court’s observations were obiter. Her Honour also acknowledged that the Full Court’s reasoning “is not consistently explicit, but must be inferred”. Her Honour considered that the Full Court’s reasons:

470 …. in substance indicate that it is the features of shape or configuration of an artwork (not a label on which the artwork is reproduced) that must be relevantly embodied in a product, which will occur when the product (in the present case, a garment) is made in the shape or configuration of the artwork.

Thus, the diamond pattern was not a corresponding design because, when stitched on to Seafolly’s bikinis, it did not define the shape or configuration of the bikini as a garment.

In reaching this conclusion, Dodds-Streeton J had to interpret the Full Court’s declaration at [58] that a design must be conceptually distinct from the product in which it was embodied to qualify as ‘embodied’ for the purposes of s 74. That created a problem in the present case as Dodds-Streeton J considered the stitching, or smocking, could not have existed independently of the garment:

473 It is true that, in contrast to the logo in Polo/Lauren itself, the reproduction of the Senorita artwork sewn on to the relevant garment may not retain a separate existence, as probably, it could not survive removal and is not conceptually distinct from the garment. Accordingly, if the Full Court’s observations in [58] represent the correct and comprehensive test, the Senorita artwork could be embodied within the meaning of s 74(1). As stated above, however, the comment at [58] does not comprehensively reflect the reasoning of the Full Court’s judgment.

I am not sure, with respect, why the Senorita design was any the less capable of independent existence than the Polo logo. I think the design could not have an independent existence because it was created by attaching the stitching to the shirring framestrings and there was presumably no drawing.

Dodds-Streeton J identified a further problem. It seems difficult, with respect, to reconcile the Full Court’s interpretation of s 74 with the clear legislative intent to capture woven tapestries, bas relief and “textured” carpets within the concept of corresponding design by the inclusion in s 74(2) of:

“embodied in , ” in relation to a product, includes woven into, impressed on or worked into the product.

According to Dodds-Streeton J:

480 Following the insertion of the words “woven into”, “impressed on” or “worked into” in s 74(2), it seems clear that features of shape or configuration of an artwork can be embodied in an article which is itself a piece of embroidery, a carpet, bas?relief or similar, by being woven or worked in. This was the qualification to the maintenance of the tradition [sic] position to which the Full Court referred at [48]. The amendment to s 74(2) did not, however, apply to the circumstances of Polo/Lauren itself as the relevant product was a garment rather than a carpet, bas?relief or embroidery (although the design was applied or attached by means of embroidery or “weaving in”).

Instead:

481 In the light of the Full Court’s emphasis that the position was otherwise unchanged, it would seem that it rejected Rares J’s analysis not simply or principally because the logo remained conceptually distinct from the garment, but because the garment was not made in the shape or configuration of the artistic work, irrespective of whether it was three dimensional.

It’s not clear why garments should be treated any differently to tapestries, carpets etc. I suppose a carpet could for example be woven in the shape of a (stylised) polo player or teddy bear or some other novelty shape thought to be appealing to someone out there in the wide world, but a tapesty? One might have thought (if one didn’t have the Full Court’s obiter dicta hanging over one) the legislature intended to catch all such woven, stitched or otherwise ‘applied’ artistic works from its intention to ensure that carpets, tapestries and the like be “clearly” brought in.

This is not to say that the alternative, literal approach to interpreting s 74 is not without its challenges. Dodds-Streeton J went on in dicta to consider that the Full Court really also disagreed with Rares J’s view that the embroidered stitching was sufficiently three-dimensional to qualify as features of shape or configuration.In any event:

486 … the surface of the garment onto which the smocking is sewn is not flat because the fabric is shirred. Any protrusion of the smocking from the surface is minimal and probably significantly less than that in Polo/Lauren itself, which on a fair reading of its judgment, the Full Court nevertheless thought insufficient.

So, there may well be questions of degree in how much three dimensional appearance is required before something qualifies as shape or configuration.[4] That is, however, a problem which long challenged designs law.

Seafolly Pty Ltd v Feswtone Pty Ltd [2014] FCA 321

 

Update:

Tim Golder points out:

  1. At paragraph 13, her Honour noted that the Señorita work subsisted in final drawings – so my attempt to rationalise her Honour’s perceived distinction to the Polo logo fails dismally.
  2. City Beach has already lodged its appeal: VID224/2014 for mention before Gordon J on 2 May.

  1. City Beach Australia is the trading name of Fewstone Pty Ltd.  ?
  2. IceTV Pty Ltd v Nine Network Pty Ltd (2009) 239 CLR 458 at [54] and [170].  ?
  3. Putting to one side, of course, all the fun and games of what may be a work of artistic craftsmanship for the purposes of s 77(1)(a) or the difference between “shape or configuration” and “pattern or ornamentation”.  ?
  4. This would also be an issue to some extent under the UK’s test of “surface decoration”: see Lambretta Clothing v Teddy Smith [2004] EWCA Civ 886.  ?

Attorney-General on copyright reform DownUnder

Friday, February 14th, 2014

Yesterday, the Commonwealth Attorney-General, who has portfolio responsibility for copyright in Australia, gave an important speech at the opening of the Australian Digital Alliance forum.

Some things that caught my eye:

The Copyright Act is overly long, unnecessarily complex, often comically outdated and all too often, in its administration, pointlessly bureaucratic.

Can’t argue with that: s 195AZGF or s 135ZZZZA, anyone? So, we are going to embark on a process to reform copyright. Bearing in mind that the ALRC has just had its report tabled:

I remain to be persuaded that [adopting 'fair use'] is the best direction for Australian law, but nevertheless I will bring an open and inquiring mind to the debate.

and

First, when this process is finished, and it will be a through and exhaustive exercise in law reform, the Copyright Act, will be shorter, simpler and easier to use and understand.

Secondly, the Act will be technology neutral – no more amusing references to videotapes as we find in current section 110AA.

Thirdly, we will pay careful regard to the broader international legal and economic context ….

In carrying out this work:

The challenge for us today is how to balance the benefits for creators against a range of other public interests including the interests of users, educators and other important public goods.

….

Nonetheless, the fundamental purpose of copyright remains unchanged – to ensure that those who take on the risks of creation are appropriately rewarded for their abilities and efforts.

On the subject of online piracy:

the High Court’s decision of 2012 in the iiNet casechanged the position. The Government will be considering possible mechanisms to provide a ‘legal incentive’ for an internet service provider to cooperate with copyright owners in preventing infringement on their systems and networks.

Options the Attorney identified for fixing this include ‘graduated response’, third party injunctions against ISPs or maybe just facilitating self-regulation.

Read the Attorney General’s speech in full.

Lid dip: Peter Clarke

ALRC report published – fair use recommended

Thursday, February 13th, 2014

The ALRC’s report on Copyright and the Digital Economy was tabled in Parliament today.

There are 30 recommendations, but the principal recommendation is the introduction of a general fair use defence against copyright infringement.

Here’s a statistic:

… the ALRC … undertook 109 consultations and received 870 submissions.

The principal recommendation:

Recommendation 5–1 The fair use exception should contain:

(a) an express statement that a fair use of copyright material does not infringe copyright;

(b) a non-exhaustive list of the factors to be considered in determining whether the use is a fair use (‘the fairness factors’); and

(c) a non-exhaustive list of illustrative uses or purposes that may qualify as fair use (‘the illustrative purposes’).

Recommendation 5–3 The non-exhaustive list of illustrative purposes should include the following:

(a) research or study;

(b) criticism or review;

(c) parody or satire;

(d) reporting news;

(e) professional advice;

(f) quotation;

(g) non-commercial private use;

(h) incidental or technical use;

(i) library or archive use;

(j) education; and

(k) access for people with disability.

There would also be a corresponding repeal of fair dealing and other specific defences.

If ‘fair use’ is not adopted, the ALRC recommends that a fair dealing exception be introduced for each of those purposes; (a) to (e) essentially exist already; (f) to (k) would be new.

There are other recommendations and some specific defences, particularly relating to education, governmental use and broadcasting. On the question of orphan works, the ALRC recommends:

Recommendation 13–1 The Copyright Act should be amended to limit the remedies available in an action for infringement of copyright, where it is established that, at the time of the infringement:

(a) a reasonably diligent search for the rights holder had been conducted and the rights holder had not been found; and

(b) as far as reasonably possible, the user of the work has clearly attributed it to the author

ALRC’s media release

 

The full report

A summary report

Attorney-General’s answer in question time last year.

Securities over IP

Thursday, January 23rd, 2014

IP Australia has published a reminder:

The transitional period to register any securities (charges, mortgages etc.) you may have taken out over IP ( registered trade marks, patents, designs etc.) on the Personal Property Securities Register expires on 31 January 2014.

The Personal Properties Security Register is a national register of claims to security interests over personal property (which includes our imaginary subject matters) in essence to provide a one stop shop for notice about such claims.

If you (or your client) has taken out a security over someone else’ intellectual property or where the other person’s intellectual property is being used as collateral for repayment, the security should be registered on the Personal Property Securities Register. In very broad terms: if the security isn’t registered in the Personal Property Securities Register, its claim to priority over any later security or even enforceability could be lost.

IP Australia’s warning points out that it is not enough to have registered the security interest in a register of IP such as the Trade Marks Register, the Patents Register, the Register of Designs or the Register of PBR. These registrations will not be transferred automatically to the Personal Property Securities Register. Morever, registration of the security interest on one or more of those IP Registers will not take priority over a later registration on the Personal Property Securities Register.

So, if you or your client have taken out such a security and haven’t registered it in the Personal Property Securities Register yet, ‘hurry, hurry, hurry; quick, quick, quick’ (with apologies to Alexis Jordan).

Although IP Australia’s warning relates specifically to the registered IP it administers, the legislation also applies to unregistered IP such as copyright.

IP Australia’s media release.

IP Australia’s general overview of PPS

PPS R.

Copyright and the ALRC

Friday, December 6th, 2013

The Copyright Society reports that Senator Brandis (the Commonwealth Attorney-General) has confirmed to the Senate that:

  1. the ALRC did submit its final report on Copyright in the Digital Economy on Monday; and
  2. the ALRC has recommended:

It has recommended the introduction of a flexible fair-use exception as a defence to copyright infringement. It has also recommended retaining and reforming some of the existing specific exemptions and introducing certain new specific exemptions; amending the act to clarify the statutory licensing scheme; limiting the remedies available for copyright infringement to encourage the use of orphaned works; reforming broadcasting exemptions and amending the act to limit contracting-out terms.

According to the ALRC, it received over 860 submissions and anticipates that the Final Report will be tabled in Parliament within 15 sitting days after its delivery.

Senator Brandis indicated the Government would respond in the New Year.

In response to a further question, Senator Brandis re-affirmed the Government’s commitment to “the content industries” and stated:

It is the government’s strong view that the fundamental principles of intellectual property law, which protect the rights of content creators, have not changed merely because of the emergence of new media and new platforms. The principles underlying intellectual property law and the values which acknowledge the rights of creative people are not a function of the platform on which that creativity is expressed. The principles did not change with the invention of the internet and the emergence of social media. So in this changing digital world, the government’s response to the ALRC report will be informed by the view that the rights of content owners and content creators ought not to be lessened and that they are entitled to continue to benefit from their intellectual property.

Read the Copyright Society’s report here.

 

Update:

Zdnet reads Senator Brandis’ remarks as indicating the Government will not adopt the ALRC’s recommendations.

 

Lid dip: Peter Clarke, barrister

Assigning rights in future copyright – Bollywood style

Monday, October 21st, 2013

Typically, a composer or lyricist who becomes a member of a performing right society (well, at least a performing right society in the British tradition) assigns the copyright insofar as it relates to “performing rights”[1] to the collecting society including all rights to Works they might make in the future.

Messrs Salim and Suleiman Merchant are apparently renowned composers of music for the soundtracks of Bollywood movies. In 1996 and 1998, respectively, they became members of the Performing Right Society, the PRS, the collecting society in the UK. As part of the terms of becoming members, they each agreed to assign to the PRS:

“absolutely for all parts of the world the rights which belong to you on the date of this Agreement or which you may acquire or own whilst you remain our member”.

However, in 2008, they signed up to compose the music for a film called Kurbaan. One of the terms of their contract with the producers, Dharma Productions Private Limited, was that all copyright in any music they wrote vested in Dharma Productions on creation.

Kurbaan was subsequently broadcast on B4U, apparently a broadcaster that specialises in all things Bollywood, including the Merchants’ music composed for the film. B4U refused to pay licence fees to the PRS.

B4U’s argued that the terms of the agreement with Dharma Productions meant that s 11 of the CDPA 1988[2] operated so that the Merchants never became the owner of any copyright in the Kurbaan music since it vested eo instanti on creation in Dharma Productions. Therefore, the Merchants never had any copyright in the music which could be assigned to the PRS.

Nice try!

The Court of Appeal said that the assignment to the PRS, being the first in time, took priority so s 91 of the CDPA[3] operated to assign the copyright to the PRS, on creation, and the Merchants had nothing to assign to Dharma.

Formally, the Court of Appeal focused on the wording in the PRS agreement that assigned any copyright that the composer may acquire while a member. Moses LJ treated this as sufficient to cover situations where, but for the agreement with Dharma Productions, the Merchants would have acquired copyright.

B4U Network (Europe) Limited v Performing Right Society Limited [2013] EWCA Civ 1236

Lid dip: Peter Clarke


  1. The APRA membership form defines these, with some exceptions, as the right to perform the work in public and to communicate it to the public.  ?
  2. Corresponding in effect to s 35(6) of our Act.  ?
  3. Corresponding to s 197 of our Act.  ?

A couple of other points from Insight on appeal

Monday, July 8th, 2013

Following on from the earlier post, the Full Court did, however, dismiss ACER’s appeals against Besanko J’s rulings that:

  1. Dr Hart owned the copyright in the SOQH, even though it was created while he was employed by the Department of Education; and
  2. The assignment of the right to sue for past infringements was valid.[1]

The ruling on the right to sue for past infringements is particularly important as it is the first substantial appellate consideration of the question. It is all the stronger because it was executed some 2 years after the assignment of copyright but Besanko J and the Full Court found there was sufficient nexus with the copyright assignment to support its validity.

Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd [2013] FCAFC 62


  1. Bit more on the ownership, assignment and additional damages questions here. ?

Turns out, damages were payable after all

Wednesday, July 3rd, 2013

The Full Court has upheld Insight SRC’s appeal that it was entitled to compensatory damages under s 115(2) of the Copyright Act.

When ACER committed the infringements by reproducing the SOHQ, Dr Hart, the owner of the copyright, exploited it through his Insight company as an informal licensee or licensee at will.[1] As is probably not uncommon with “family” companies, the terms of the licence were so unclear Besanko J could not ascertain them. In these circumstances, Besanko J had ruled at [118]:

it is necessary to consider what action Dr Hart could have taken immediately prior to the execution of the Deed on 12 May 2011 by way of a damages claim for infringement of the copyright in the SOHQ. The possibilities are general damages under subs 115(2) and additional damages pursuant to subs 115(4) of the Act. As to the former, the difficulty for the applicants is that Dr Hart was not personally conducting a business involving the use of the SOHQ between the beginning of 2006 and 1 October 2009 and it has been no part of their case before me that Dr Hart personally would have exploited any commercial opportunities with ISV. Furthermore, Dr Hart did not claim that he could recover any such loss as the major shareholder of Insight SRC and that the Court could lift the corporate veil. On the other hand, what Dr Hart did have as the copyright owner was a right to nominal damages for infringement of copyright and a right to claim additional damages under subs 115(4). ….

ACER had used the copyright infringements to obtain contracts with ISV. It appears to have been accepted by both sides on the appeal that ISV would have had to award the contracts to Insight to be permitted to use the copyright. Bearing in mind that damages under s 115(2) are compensatory, the Full Court considered Dr Hart had suffered loss in the form of being prevented from procuring for his company the contracts ACER obtained by its copyright infringements. At [23]:

it is safe to infer that Dr Hart’s damage was the value of the loss of his ability to cause Insight to enter into a contract with ISV that would have generated the profit of $130,000 for Insight as found by the primary judge. Neither party at the trial asked his Honour to assess, as an alternative, the value of the loss of a chance to make such a contract.

From here, things get tricky. The Full Court went on to say at [24] that Dr Hart’s loss was not the royalty he would have received through the licence arrangement or the dividend he might have been paid from Insight’s profits:

An important component of this identification of what Insight’s damage would have been, is that Dr Hart wanted Insight to benefit by receipt of the profit. That is different to the characterisation urged by ACER that his damage was what might be received by him after Insight, Insight Holdings and the interposed trusts had received and made sequential distributions. Dr Hart used his efforts in exploiting the copyright to benefit Insight.

The reasoning seems to have been influenced by the proposition that a donor of a gift is entitled to recover the replacement value of the gift if it is wrongfully destroyed by another before receipt by the intended donee. (Perhaps, the real problem was that the licence arrangement was so amorphous[2] that it was not really possible to identify what fee was payable for the use of the copyright.)

In an attempt to kill off the case once and for all, the Full Court then went on to say that Dr Hart was entitled to at least $130,000 and, if the parties didn’t accept that, maybe more.

The $130,000 figure is interesting. It is the amount of profit Besanko J found ACER made on the ISV contracts it obtained by infringing the copyright. Presumably, that is the damages that Besanko J would have awarded on the basis that Insight would also have made that much profit.[3] I’m not sure why that follows but, perhaps, the Full Court had in mind that, possibly, Insight’s profit may have been higher than ACER’s as it may have had lower overheads?

Wouldn’t things have been easier if the majority in Aristocrataristocrat had agreed with Rares J’s view (and that of the English courts) that a reasonable royalty could be awarded as compensatory damages?

Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd [2013] FCAFC 62


  1. Insight did not become a formal, exclusive licensee until ACER’s infringements ceased. Bit more on the ownership, assignment and additional damages questions here.  ?
  2. The Full Court described it as “the informal, oral or bare licence that he granted it, or treated it as having had before the formal, exclusive licence [was] granted”. (emphasis supplied)  ?
  3. Damages under s 115(2) being an alternative to an account of profits must be the loss the copyright owner suffered, not the profits the infringer made which is the remedy obtained through an account. See e.g. Aristocrat and Rifai.  ?

Another copyright in project homes case

Thursday, June 6th, 2013

Some 5 years after it went hunting, Tamawood[1] has successfully sued Habitare (now with administrators and receivers and managers appointed) for infringing copyright in house plans.

Copyright in some plans was infringed (Torrington v Duplex 1 & Duplex B); but not in others (Conondale / Dunkeld v Duplex 2 & Duplex A).

One point of interest: Habitare commissioned Tamawood to develop plans for 2 new houses for it. These plans were submitted to the Brisbane City Council to obtain development approvals. The relationship with Tamawood broke down, however, and Habitare continued to use the plans. Collier J found that the “usual” (i.e. Beck v Montana)[2] implied licence did not apply here. It did not apply because Tamawood did not get paid the “usual” fee for doing the job: rather, it agreed to prepare the drawings at no cost on the basis that it would build the houses once development approval had been obtained. Once the deal fell through and Habitare decided not to proceed with Tamawood as the builder, therefore, its rights to use the plans terminated.

Continuing with the licensing theme, Mondo (which Habitare eventually used to design the houses in dispute) did infringe copyright by creating the infringing plans Duplex 1 and Duplex B plans. It did not infringe Tamawood’s copyright, however, when it downloaded the Torrington plans from Tamawood’s website. Tamawood made the plans available on its website for the whole world to see and download so Collier J considered Mondo’s purpose in using the downloaded plans to design competing houses was not relevant.[3]

(Mondo did succeed in its cross-claim against Habitare and 2 of its principals for misleading or deceptive conduct: they told Mondo that the copyright issues with Tamawood had been sorted out or resolved.)

A second point of interest is that the builder of Habitare’s infringing houses, Bloomer Constructions, successfully made out the “innocent infringer” defence provided by s 115(3). Cases where this defence has been relied on successfully are as rare as the proverbial hen’s teeth. It seems to have been because the builder became involved very late in the day: it had no knowledge of Tamawood’s involvement in the earlier stages and the plans it was provided with had Mondo’s name or title block.

Finally, a curiosity: the reasoning on authorisation liability manages not to refer to Roadshow v iiNet at all, but refers extensively to University of NSW v Moorhouse. In the event, Habitare apparently conceded it would be liable for authorising the infringements of the others. Two of its principal officers, Mr Peter O’Mara and a David Johnson, managed to escape liability, however. While they were heavily involved in the business, their involvement was mainly on the finance side rather than sales and marketing. Collier J seems to have found that, within Habitare, responsibility for the conduct that infringed had devolved on to 2 other officers, Shane O’Mara – Peter O’Mara’s son – and a Mr Speer. Her Honour also considered that, by engaging Mondo as architects, Peter O’Mara and Johnson took “reasonable steps to prevent or avoid the doing of the infringing act”.[4]

Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 3) [2013] FCA 410


  1. Yes, it is that Tamawood.  ?
  2. See _e.g. Concrete Constructions_ at [71] – [75] per Kirby and Crennan JJ).  ?
  3. There is no discussion in the judgment of whether Tamawood’s website included a notice purporting to limit the use of the site, for example, to “personal use” or “private and non-commercial use” (whatever either of those may mean) or in any other way.  ?
  4. See s 36(1A)(c). No claim for authorisation or procurement appears to have been pursued against Shane O’Mara or Speer.  ?

The Canadian copyright ‘pentalogy’

Monday, May 6th, 2013

Last year, the Supreme Court of Canada handed down 5 decisions on the same day relating to fair dealing and other issues arising from digital transmission of copyright material.

In a number of respects, its decisions are directly opposite to conclusions that have been reached by our High Court (one example – but it appeared to turn on different statutory language). In others, such as the ‘digital taxi’ theory, the issue may well be regarded as still highly controversial here.

Anyway, a number of Canadian experts have published  a book looking at the ramifications of these wide ranging decisions.

In an interesting experiment, you can buy it in the traditional way through the publisher or you may also download an ebook version for free. For more details, see the 1709 blog post.