Rihanna’s new twist to S&M

Purely in the interests of improving professional understanding (and not at all for the purposes of titillation) I should draw your attention to Mallesons’ report that Rihanna’s S&M pop video, or at least stills from it, are attracting allegations of copyright infringement.

Whatever you do, don’t go to the Mail online’s report.

It does seem that Ms Rihanna and Mr LaChapelle have prior history working together.

Just to prove this is really a blog about IP law, I should draw your attention to our fair dealing defence for, er, parody and satire in the perhaps unlikely events that (a) this is an infringement or (b) Mr LaChapelle were to sue down here.

The oldest Australian film

Last week, various news agencies carried reports about a showing of Australia’s oldest, or oldest surviving, film – Patineur Grotesque.

The story, with links to the video, at the ABC, the Age and the SMH. The curator’s clip and notes at Australian Screen.

It was made by Marius Sestier, on a mission from the Lumiere brothers, in 1896; but apparently not shown in Australia (for risk of defamation?).

Wikipedia lists it as one of 3 “first” Australian films. However, if the Age is to be believed, M. Sestier arrived in Australia with the new fangled invention only to find the pesky Rickard had already introduced the movies.

ISPs, authorisation and copyright DownUnder

In case you have been on Mars, or locked in a conference room writing submissions, you have probably heard that the Federal Court has rejected the music industry’s attempt to impose liability on iiNet, and ISP, for copyright infringement by authorising the infringing activities of users of its network.

Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 (636 para judgment) here.

Since I will find myself still locked in aforesaid conference room, I’ll simply quote (at this stage) from the 21 para summary:

 

The first step in making a finding of authorisation was to determine whether certain iiNet users infringed copyright. I have found that they have. However, in reaching that finding, I have found that the number of infringements that have occurred are significantly fewer than the number alleged by the applicants. This follows from my finding that, on the evidence and on a proper interpretation of the law, a person makes each film available online only once through the BitTorrent system and electronically transmits each film only once through that system. This excludes the possible case of a person who might repeatedly download the same file, but no evidence was presented of such unusual and unlikely circumstance. Further, I have found, on the evidence before me, that the iiNet users have made one copy of each film and have not made further copies onto physical media such as DVDs.
The next question was whether iiNet authorised those infringements. While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users. I have reached that conclusion for three primary reasons.
Looks like there will also be interesting obvservations on the operation of the Telecommunications Act and the role of iiNet’s policy vis a vis repeat offenders.

Howard Knopf and Michael Geist look at the decision from Canadian perspectives.

Substantial part of a video game

The UK Court of Criminal Appeal has dismissed an appeal against a criminal conviction for selling modchips to enable Sony Playstations, Nintendo and Microsoft to play counterfeit games.

The 1709 [delete mouthfull of title] blog has a detailed report.

Those of us living in the autochthonous realm hidden away in the summer sun may find some interest in the reasons why the playing of the (counterfeit) games would result in a reproduction of a substantial part of the copyright – a point doubted or left open in Stevens v Sony [2005] HCA 58 at [80] – [99].

However, a considerable degree of caution will be required:

First, (what I guess constitutes a plurality of) the High Court has already ruled that a single image (or “frame”) from a film is not (or is not necessarily) a substantial part – at least of a television broadcast (Network Ten v Nine Network):

Secondly, as Stevens v Sony shows, Australia has very definitely embarked on its own course in relation to technological protection measures and this whole area of “meta” copyright.

Thirdly, at least 3 of the judges in the IceTV case resoundingly declared that it is not appropriate to test substantiality by reference to the taking of  the skill and effort of the author. Well, that is what they said; whether or not it is what they did is another matter. The 3 judges in the other judgment, of course, appear very much to have applied that misappropriation of the skill and effort (in expression) approach.

Those of you who are political philosophers or constitutional scholars may also look with some bemusement, or perhaps appreciation, on the Court of Criminal Appeal’s thundering against the idea of leaving to that engine of democracy, otherwise known as the jury, such recondite questions as copyright infringement, when perfectly well-trained Chancery judges were ready and waiting to serve. Of course, those of us who practise in the civil jurisdiction where IP cases are usually heard might well be horrified by the prospect of trying to present such a case to 12 men and women good and true!