- RT @pofip: ACCC warns about questionable trade mark renewals http://bit.ly/4l8aO1 Our list is here:http://bit.ly/hnznh
- @nipper: Podcast debate on SCOTUS granting cert in Bilski (patent) case: http://bit.ly/1c4oaw
- wrothnie ACIP interim report on post grant patent enforcement strategies. Comments by 20 Sep 2009. 4 copy contact Jackie Carroll http://bit.ly/IoZcZ
- RT @TrademarkBlog: Link to text of Superman Decision: Creator’s Heirs Win Rights to Early Storieshttp://bit.ly/fTO00
- wrothnie Seminar: 27 August 2009: Copyright Responsibility on the Internet – in Three Acts — Copyright Society of Australia http://ff.im/-6VzLD
- wrothnie IPKat – news and fun for everyone!: Global IP law: two recent publications http://ff.im/-6UKjl
- RT @joshgans: Build a higher paywall for newspapers. Excellent article. Wrong but excellent.http://bit.ly/12kG13
- DCCA Opinion No. 07-CV-159: Solers, Inc. v. John Doe – subpoena to identify poster http://ff.im/-6VSN5
- RT @ipgossip: Francis Gurry, Dir. Gen. of WIPO is Australian, a good listener & does yoga daily. Read more about him: http://bit.ly/HICsX
- RT @LexMonitor: RT @ALI__ABA: Who Represents America’s Biggest Companies … and How http://bit.ly/vtBNh
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:
- whether ACMA would be required to provide an undertaking as to damages – in the end, it wasn’t;
- 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  FCA 539
Her comments were part of a wide ranging speech on what the EU is doing and will be doing about broadband, access and …. So, what did she actually say?
After identifying access to digital content as the first of 4 priority issues, Ms Reding said:
1. My first and most important priority for Digital Europe is: To make it easier and more attractive to access digital content, wherever produced in Europe. The availability of attractive content that appeals to European viewers, listeners and readers will be decisive in driving further the take-up of high-speed broadband internet. It is therefore regrettable that we currently have an extremely polarised debate on the matter: While many right holders insist that every unauthorised download from the internet is a violation of intellectual property rights and therefore illegal or even criminal, others stress that access to the internet is a crucial fundamental right. Let me be clear on this: Both sides are right. The drama is that after long and often fruitless battles, both camps have now dug themselves in their positions, without any signs of opening from either side.
In the meantime, internet piracy appears to become more and more “sexy”, in particular for the digital natives already, the young generation of intense internet users between 16 and 24. This generation should become the foundation of our digital economy, of new innovation and new growth opportunities. However, Eurostat figures show that 60% of them have downloaded audiovisual content from the internet in the past months without paying. And 28% state that they would not be willing to pay.
These figures reveal the serious deficiencies of the present system. It is necessary to penalise those who are breaking the law. But are there really enough attractive and consumer-friendly legal offers on the market? Does our present legal system for Intellectual Property Rights really live up to the expectations of the internet generation? Have we considered all alternative options to repression? Have we really looked at the issue through the eyes of a 16 year old? Or only from the perspective of law professors who grew up in the Gutenberg Age? In my view, growing internet piracy is a vote of no-confidence in existing business models and legal solutions. It should be a wake-up call for policy-makers.
I f we do not, very quickly, make it easier and more consumer-friendly to access digital content, we could lose a whole generation as supporters of artistic creation and legal use of digital services. Economically, socially, and culturally, this would be a tragedy. It will therefore be my key priority to work, in cooperation with other Commissioners, on a simple, consumer-friendly legal framework for accessing digital content in Europe’s single market, while ensuring at the same time fair remuneration of creators. Digital Europe can only be built with content creators on board; and with the generation of digital natives as interested users and innovative consumers .
She then gave 2 examples.
The first was facilitating online licensing across all 27 member states. [Why stop there? As Prof. Gans has pointed out, albeit inaccurately under the rubric of parallel imports, this is a global problem.]
The second is to create a modern set of rules to encourage the digitisation of books:
Let us be very clear: if we do not reform our European copyright rules on orphan works and libraries swiftly, digitisation and the development of attractive content offers will not take place in Europe, but on the other side of the Atlantic. Only a modern set of consumer-friendly rules will enable Europe’s content to play a strong part in the digitisation efforts that has already started all around the globe. (The Commissioner’s emphasis)
Read the full text of the Commissioner’s speech here (the downloading wars start about 80% of the way ‘down’).
The idea of looking at the issue from the eyes of 16 year olds, rather than people who grew up in the 50s and 60s, is rather Lessig-ian (watch the Ted Talk video).
Bit of a stretch, blaming the law professors though!
Meanwhile, the very same day, Euro publishers, demonstrating the “us” versus “them” mentality Commissioner Reding criticised, took the opportunity to open another front on their war against Google, linking and aggregating. Publishers’ announcement and Hamburg declaration via here.
post-publication postscript: Chris Anderson from Wired on “Free”, reviewed in NYT.
Nic Suzor discusses the threat of an $11,000 a day fine if the EFA did not remove a link on its website to gruesome pictures of aborted foetuses i.e. R+ rated content and possible freedom of speech issues under the Constitution and the BSA: read here.