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Michael Geist has a link to the leaked EU comments on the chapter for third party liability on the internet - being drafted by the USA. The Guardian has weighed into the debate. Kim Weatherall has emerged from her self-imposed seclusion to comment here, here and here. DFAT's must recent summary and overview of key elements. Anondyne USTR statement.

Logan J has granted an interlocutory injunction under the Spam Act 2003, pending trial for civil penalties. Apart from the fact that cases under the Act are not exactly thick on the ground, the debate in the case really turned on:

1. whether ACMA would be required to provide an undertaking as to damages - in the end, it wasn't;
2. whether the injunction should take the narrower form of undertakings proferred by the respondents or the wide form, corresponding to the final relief, sought by ACMA.

Logan J considered the narrower form would suffice, but refused to limit it by reference to "reasonable endeavours":

Subject to one qualification, I consider that the undertakings proffered by the remaining Respondents sufficiently meet the case for interlocutory injunctive relief that ACMA has established. That qualification relates to Winning’s undertaking only that it will “use reasonable endeavours” to remove or otherwise deactivate, or cause to be removed or deactivated, any fictitious profiles on dating websites or social networking websites it has registered or otherwise placed on those websites, whether by itself, its servants or agents. Winning seems, prima facie, to have control in respect of such websites. ACMA, in my opinion, has established a case for an interlocutory order that Winning remove or deactivate the websites concerned. If it transpires, for some unforeseen reason, that Winning cannot, notwithstanding what it shows to be endeavours which the Court regards as reasonable effect removal or deactivation, it and its officers would not be found guilty of a contempt. That though is to anticipate. Further, what, prospectively, amounts to “reasonable endeavours” may be a subject upon which reasonable people might reasonably differ. It is undesirable, in my opinion, that that degree of imprecision attend either an interlocutory injunction or an undertaking which upon acceptance will have the same practical effect.

Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong [2009] FCA 539

Plagiarism Today outlines 6 steps to try and identify the person you should be sending "notice and take down" notices under the DMCA to. Apart from complaints under the DMCA there could be some useful hints (apart from the inquiry to the Copyright Register) under our scheme. Although, of course, under reg. 20C the carriage service provider is supposed to publish those details in a prominent place on their website. Read the suggestions here.

DesignTechnica operates bulletin boards. The plaintiff alleged that some postings on the bulletin boards defamed it. In addition to suing DesignTechnica, the plaintiff sued Google for libel by reproducing snippets of the (allegedly) defamatory material in search results. Eady J, sitting in the Queen's Bench Division,  dismissed the plaintiff's claims against Google on the grounds that Google did not publish the material. The case obviously turns on the requirements for an action in defamation. Of potential interest in an intellectual property context, however, is that his Lordship noted that the generation of the snippets was automatic, not volitional. Thus, his Lordship analagised Google's position to the position of someone who merely 'facilitated' infringing intellectual property conduct rather than 'authorised' it. In the course of his judgment, his Lordship explained:

54.  The next question is whether the legal position is, or should be, any different once the Third Defendant has been informed of the defamatory content of a "snippet" thrown up by the search engine. In the circumstances before Morland J, in Godfrey v Demon Internet, the acquisition of knowledge was clearly regarded as critical. That is largely because the law recognises that a person can become liable for the publication of a libel by acquiescence; that is to say, by permitting publication to continue when he or she has the power to prevent it. As I have said, someone hosting a website will generally be able to remove material that is legally objectionable. If this is not done, then there may be liability on the basis of authorisation or acquiescence.

55.  A search engine, however, is a different kind of Internet intermediary. It is not possible to draw a complete analogy with a website host. One cannot merely press a button to ensure that the offending words will never reappear on a Google search snippet: there is no control over the search terms typed in by future users. If the words are thrown up in response to a future search, it would by no means follow that the Third Defendant has authorised or acquiesced in that process.

In addition, Eady J noted that Google had promptly blocked access to specific URLs, but could not reasonably be expected to block all search results which could include the (allegedly) infringing snippets. Metropolitan International Schools Ltd v DesignTechnica [2009] EWHC 1765 (QB). Lid dip: Prof Goldman

Yesterday (in the USA) Google's new trade mark policy and complaint procedure came into force. All the details here. Australia is still in the regions where both text and keywords are monitored. Lid dip @TrademarkBlog (aka Marty Schwimmer)

The blogosphere 'lit up' and Facebookers (?) went on the rampage when it emerged that Facebook was unilaterally changing its terms of use (and not telling anyone) - Facebook: All Your Stuff is Ours, Even if You Quit. Jonathon Bailey at Plagiarism Today looks at the EFF's new TOSBack so you can keep up to date with how your service provider is "shifting the goalposts". Google, for example, amongst other things insidiously changed "Terms of Service for Blogger.com" to "Blogger Terms of Service". (Vote of thanks to whichever Supreme Being I'm following today that I don't use Blogger!) All joking aside (and remembering the outrage at Facebook - hope Twitter doesn't own all my tweets?), this could be a very practical tool. p.s. Facebook did allow its outraged users to set up a community on Facebook to campaign against the change.

The Annual Meeting of the American Economics Association tries to work out how Google works or how AdWords changed the world:

here

A tidbit:

During the question-and-answer period, a man wearing a camel-colored corduroy blazer raises his hand. "Let me understand this," he begins, half skeptical, half unsure. "You say that an auction happens every time a search takes place? That would mean millions of times a day!"

Varian smiles. "Millions," he says, "is actually quite an understatement." Lid dip @joshgans