IPwars.com

Mainly intellectual property (IP) issues Down Under

The Internet Wars (copyright campaign) come to ISPs down under

The big movie studios have brought proceedings against iiNet, one of the larger (in a non-Bigpond sort of way) ISPs seeking to impose liability on the ISP for infringing downloading by its subscribers.

The Application is here (pdf) and the Statement of Claim is here (pdf).

Various analyses:

Nic Suzor has a detailed view here

Kim Weatherall here

Australian PC Mag here

The Film Industry outlines its position here

IPRoo carries a quote from the Internet Industry Association’s CEO here.

As you can see from this coverage, this has really set the cat among the pigeons.  The striking thing about this action, however, is that one might have characterised iiNet as a general purpose ISP, not existing just to promote infringing downloads like the Court’s found Mr Cooper’s mp3s4free.com or substantially like Kazaa.

Thus, the distinction propounded by the record companies in Cooper (at [123]) and both questioned and side-stepped by Branson J (at [40]) appears to be very squarely off the table. So, as many of the bloggers note, it is not too much of a stretch to claim that the future of the internet is at stake here.  Will the old Copyright Convergence Group‘s analogy to the postal system – imposing liability only on the person who introduces (posts) the material – be confirmed or will we, through the Courts, turn back into a closed, monitored system?

The ISPs can hardly be surprised:

(a) s 101(1A(c) expressly provides for the development of an industry code to establish norms;

(b) the copyright owners have directly attacked the ISPs in Eire;

(c) the UK government has “brokered” some sort of more “pro-active” role on ISPs too.

No doubt, if the matter goes to trial, we can expect to see a volume of evidence about the volume of iiNet’s P2P traffic vis a vis its other activities and, before then, perhaps some applications for discovery of traffic details.

Given that liability appears to be predicated on authorisation, it will also be particularly interesting to see how the movie producers circumvent the prohibition on intercepting communications over a telecommunications system and, perhaps, (if an ISP is a carriage service provider) the prohibition on use or disclosure of information the contents of any communication carried by a carriage service provider.

Cartels

How to organise a cartel or what the damages might be (apart from the penalties/fines) when if you get found out: John Asker ‘A Study of the Internal Organisation of a Bidding Cartel’ (pdf).

Warning: lots of economist-ese and formulas.

Lid-dip Prof. Joshua Gans.

Business method patenting?

The US Federal Circuit (9 panel bench) has handed down its decision ruling that Bilski’s method of hedging risks in commodities trading was not patentable.

As summarised by Patently-O, the majority opinion substantially retreats from State Street.

a process claim [must be] tailored narrowly enough to encompass only a particular application of a fundamental principle rather than to pre-empt the principle itself. A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.

Judge Newman would have found the invention patentable; Judge Rader would have rejected the patent, without the need to develop a new principle, on the grounds that all that was claimed was an abstract principle.

Read Patently-O’s summary, which also has a link to the decision itself.  Compare our Full Federal Court in Grant.

Google book

You may recall that some time ago, Google started scanning/digitising every book they could find and putting on the internet for searching.

Court actions ensured and the project was scaled back somewhat to out of print/out of copyright books.

Now the court case has been settled (subject to the Court’s approval) and the project goes on:

IPkat here (with press releases etc.) – the horse’s (well, Google’s) mouth here.

Publisher’s Weekly here via Marty.

Australian Copyright Council here.

Review cases handed down

On Friday, Kenny J handed down the 2nd and 3rd substantive design cases under the new Act:

  • in Review v Redberry [2008] FCA 1588, her Honour found the design valid but not infringed;
  • in Review v New Cover [20089] FCA 1589; valid and infringed including $85,000 damages (of which $50,000 were for additional damages).

The judgments will no doubt be up on Austlii soon but, until then, students can download pdfs from the links below:

review-v-redberry-judgment

review-v-new-cover-judgment

Lid dip, Sue Gatford.

Designs Act 1906

The Designs Act 2003 is online for free at Austlii, here. (Updated to fix link.)

Succor is also available for those looking for a downloadable online version of the Designs Act 1906 (as at the date of repeal on 17 June 2004) and the Regs.

Thanks, Thomas and Michael.

Patenting software in the UK (Europe)

The UK Court of Appeal has apparently broadened the scope to patent computer software:

Symbian Limited v. Comptroller General of Patents [2008] EWCA Civ 1066

Paul Cole guest posts at Patently-O. IPKat extensively here.

IP, China and Hong Kong

The IP Dragon has two worthwhile papers:

(1) Hong Kong is a Special Administrative Region of the People’s Republic.  What does that mean for protecting your IP? here (and here)

(2) China’s National IP strategy 2008 here.

He also has a link to an interesting paper on your IP strategy in China – most experience suggests you need to get on the ground where your outsourcing is taking place.

Meanwhile, IPKat looks at the problem of bad faith trade mark registrations in China – Phony Sony anyone?

Meanwhile, as the death penalty for IP infringement is proving to be than an absolute deterrent, lateral thinking has been required.  We only sell real products here, really!

The record industry against the world

The EFF undertakes a review of the recording industry’s war against file sharing on the fifth anniversary of the launching of the RIAA’s first case.

Meanwhile, the RIAA is suing an attorney who seems to work overtime for defendants sued by the RIAA: here and. Amongst other things, Mr Beckerman maintains a checklist of tips for people facing an action by the RIAA: they won’t be directly applicable here, but who knows what food for thought you may find. If you want to get a better understanding of how the US litigation works, read Mr Beckerman’s article from the Judges Journal here.

And the RIAA is appealing (more here) the Jammie Thomas decision, seeking to be heard before the retrial.

Lid dip: Excess Copyright.

Traditional Knowledge, Folklore, And Genetic Resources -updated

The Chairman has released a report outlining how WIPO’s future work on the protection of Traditional Knowledge, Folklore and Genetic Resources following the conclusion of the 13th session of the Intergovernmental Committee.

pdf link via Intellectual Property Watch.

Kaitlin Mara has an lengthy report from the fallout of the last day’s negotiations: ‘No Agreement For WIPO Committee On Traditional Knowledge And Folklore’ here. It is interesting that ‘progress’ and ‘positive outcome’ relate solely to the adoption of yet another treaty with new rights.

Meanwhile, Lebanon is claiming, amongst other things, a ‘food copyright’ no less in felafel. Beauty Marks exposes the ‘plot’ and points to some common confusions; the IPKitties claim that Egypt really has first dibs and, as it is not claiming rights, everything is OK. Now, would a several thousand year old food count as folklore, traditional knowledge or, like Champagne, a geographic indicator?

The collection of papers for the IGC, here, and brief summary.

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