Blogger (Google) and the DMCA
Plagiarism Today considers Google’s new Blogger contact form for DMCA notfications here.
Blogger (Google) and the DMCA Read More »
A new law of copyright Down Under?
The High Court has unanimously allowed the appeal in IceTV.
IceTV did not reproduce a substantial part of Nine’s copyright in its program guides by reproducing the time and title information from those guides.
At least that means people in Australia will be able to use PVRs without the shackles imposed by the TV networks.
IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14 (lid dip Joshua Gans via Twitter)
More detailed consideration will require further time. Meanwhile, 2 points to ponder:
First, French CJ, Crennan and Kiefel JJ delivered one joint opinion. Gummow, Hayne and Heydon JJ delivered a second joint opinion.
Secondly, in their joint opinion, Gummow, Hayne and Heydon JJ trail a very long coat on the Feist-ian “spark of creativity”:
187. One final point should be made. This concerns the submission by the Digital Alliance that this Court consider the Full Court’s decision in Desktop Marketing[196] and, to the contrary of Desktop Marketing, affirm that there must be “creative spark”[197] or exercise of “skill and judgment”[198] before a work is sufficiently “original” for the subsistence of copyright.
188. It is by no means apparent that the law even before the 1911 Act was to any different effect to that for which the Digital Alliance contends. It may be that the reasoning in Desktop Marketing with respect to compilations is out of line with the understanding of copyright law over many years. These reasons explain the need to treat with some caution the emphasis in Desktop Marketing upon “labour and expense” per se and upon misappropriation. However, in the light of the admission of Ice that the Weekly Schedule was an original literary work, this is not an appropriate occasion to take any further the subject of originality in copyright works.
(emphasis supplied)
That might come as a surprise to someone who read the transcript of Desktop‘s failed special leave application.
A new law of copyright Down Under? Read More »
Pirate Bay fined and imprisoned (appeal pending)
Nic Suzor has a nice summary of the brouhaha here.
Duncan Bucknell and the Inquisitr (lid dip Denise Howell on twitter) wonder about the ramifications for Google, MSN, Yahoo etc.
The IPKat recommends Andrew Logie on what should be done now.
Andrew Logie’s point:
The reason people use TPB is that you can get content fast, free and with hardly any effort. Take ABC’s popular series ‘Lost’. If you lived in the US you could either watch or record the series on television or watch it online on ABC’s website. However, here in the UK, you could be waiting 6 months to a year to see that same episode on television, and even longer still to buy it on DVD, and if you think you can watch it online on ABC’s website, forget it: licensing restrictions will block UK internet users.
You do have another option: piracy. ….
resonates with the absurdity Kwanghui Lim identified – he can parallel import the printed books from Amazon, but Amazon won’t sell him the audio files – because of licensing restricti0ns.
Meanwhile, the (unrelated) Swedish Pirate Party organised hundreds of demonstrators to protest the decision in various parts of Sweden, according to Louise Nordstrom.
Pirate Bay fined and imprisoned (appeal pending) Read More »
(Sino) Free Trade Agreements
IPDragon reviews Professor Yu’s analysis of why free trade agreements (STAs) are different from the things the USA imposes on people or EU agreements here (with links to Professor Yu’s article Sino Trade Agreements and China’s Global Intellectual Property Rights).
(Sino) Free Trade Agreements Read More »
iiNet and the movie studios
Some points worth pondering arising from the recent pleadings fight
Both the movie studios and iiNet brought motions for summary judgment and/or to strike parts of the other side’s pleadings relating to the claims that (1) iiNet authorised infringement, (2) iiNet was liable as a primary infringer for actually reproducing the allegedly copied films and (3) whether or not iiNet was also liable in conversion.
The movie companies are obviously suing iiNet for authorising the (alleged) infringing activities of iiNet’s subscribers on a theory similar to the successful theories in Cooper v Universal.
Part of iiNet’s defence is that the notice it received of the claimed infringements were ‘mere allegations of copyright infringement’. The judge considered this sufficient to make iiNet’s point:
56. The Court has no difficulty in understanding such pleading as being a statement that the AFACT notifications did no more than bring to iiNet’s attention an allegation of copyright infringement. Whether the notifications from DtecNet of alleged infringement are sufficient to prove infringement by iiNet’s users or might be used as evidence that iiNet was aware of the infringement of its users is necessarily a matter requiring evidence and thus is a matter for determination at the hearing. So considered, there is nothing further which needs to be added to the pleading. The Court rejects Roadshow’s assertion that such statement is inadequate.
That is, iiNet appears to be defending the allegation of authorising copyright infringement in part by contending it did not have sufficient knowledge of what was going on to have the necessary control. As the quote shows, however, whether or not iiNet’s position will be good enough to win the day remains to be seen.
The other fights which are of potentially more general interest relate to the movie companies’ allegations that iiNet is itself a direct or primary infringer (not just an authoriser) or liable in conversion under s 116.
In relation to conversion, the judge considered it wasn’t clear whether the movie companies were alleging that the ‘infringing copies’ alleged to be converted were the data electronically transmitted across iiNet’s network (facilities) as temporary or transient copies stored in iiNet’s switches and servers or in some other way.
43. It does not follow from the fact that the Court may find that the iiNet users have ‘electronically transmitted’ the films that the Court will necessarily have to find that the data so transmitted constitutes an ‘infringing copy.’ For example, the Court could find as a fact that the users have ‘electronically transmitted’ the whole or substantial part of the films by reference only to the conduct of the users without the Court having to consider the involvement of the technical process by which that transmission occurs. In such instance, the Court’s finding in relation to the conduct of the iiNet users may have no bearing on whether it finds that the data transmitted is, while in transmission, a copy of the film as defined, meaning an article or thing in which the visual images or sounds comprising the film are embodied. The data would need to be a copy for it to constitute an infringing copy, and there would have to be an infringing copy for there to be conversion.
The judge described the movie companies’ claims as novel but, at this stage of the proceedings, refused summary judgment and required them
47. … to specify exactly what the ‘infringing copies’ are; how they are created; and at least one instance of them, as is required by O 58 r 16 of the Rules
Thirdly, it does appear that the movie companies contend that iiNet directly infringes because any temporary/transient copies of infringing material stored in its network or on its servers as users download or transmit them are infringing reproductions. Unlike the conversion claim, the judge considered this adequately pleaded:
50. The issues the Court has raised regarding the definition of ‘infringing copy’, and whether that could apply on the facts pleaded, do not arise in relation to this claim. If it is found that there was transient storage of the whole or substantial part of the films, this may give rise to there being a ‘copy’ for the purposes of s 86(c) of the Copyright Act, and consequently the problems discussed above in relation to ‘electronic transmission’ do not apply.
Roadshow Films Pty Ltd v iiNet Limited [2009] FCA 332
iiNet and the movie studios Read More »
Should genes be patented?
Bit late on this one – IPRIA and MBS seminar on 24 April 2009, starting at 9.30.
Details here (pdf).
Should genes be patented? Read More »
World IP Court? 2
Howard suspects a …
cat!
Denise Howell at Sound Policy discusses financial risk (what you and I might call insurance) for online activities here (also available through iTunes).
World IP Court by 2012?
Apparently, one of the G20’s solutions to “the GFC”.
IP Watch; IPKat and Duncan Bucknell.
The G20‘s website here and, possibly more directly, the communique may turn up at the London Summit 2009 (the site is not responding at the moment). Maybe Connex is running it?
World IP Court by 2012? Read More »
Embedding rights management information in photos
Are your clients posting their photographs on the web?
If so, how are they making sure that their “rights management information” (or at least their attribution) stays with their photograph?
Jonathan Bailey discusses some ways to embed the information in the photograph when it is taken at Plagiarism Today.
Embedding rights management information in photos Read More »
Use of Software and those computer defences again
You’ll recall that SAG licensed its database software to RWWA. RWWA engaged KAZ to provide disaster recovery services and installed a copy of the software on KAZ’ off-site servers. Meckerracher J dismissed SAG’s claim that this was unlicensed and therefore infringement of its copyright. (link via my attempt to summarise here).
The Full Court has substantially dismissed the appeal, but found the judge was wrong to the extent his Honour considered s 47F of the Copyright Act 1968 would have provided a defence also.
On the question of licence construction, their Honours found that the proposed use fell within the terms of the licensed use “for … emergency restart purposes“:
34 The phrase “for … emergency restart purposes” is more ample than, for example, “in order to restart the System in an emergency”. A penumbra surrounds “emergency restart”. It is a natural reading of the composite phrase to include within its coverage testing whether the copied System will restart should an emergency occur.
35 If one were to regard the phrase “for … emergency restart purposes” as open to two constructions, SAG’s construction, in our view, results in a meaning that would be unreasonable or inconvenient. The purpose behind clause 12.3 is to protect RWWA from serious loss in an emergency, whether caused by a breakdown of its mainframe or some external event putting it out of action. It would be an unreasonable and inconvenient result if RWWA were to be unable to take sensible steps to make it more likely that the purpose behind clause 12.3 would be achieved, by testing the copied system in order to maximise the chance of the restart occurring in the event of an emergency arising.
36 Further, we agree with the primary judge’s observation quoted at [28] that SAG’s interpretation would make clause 12.3 a pointless exception to the other prohibitive or restrictive provisions of the agreement, and that such a construction would provide very little scope for achieving the purpose of clause 12.3 described above.
The expert evidence was also consistent with this.
While the Licence Agreement did (by clause 1.4) expressly prohibit the software being installed at any location other than the “designated location”, the clause had to be read in context and clause 12.3, as SAG acknowledged, did permit RWWA to use the software “for archival or emergency restart purposes”. Clause 1.2,which prohibited “use” on anything other than the designated hardware, similarly had to be read down.
If the terms of the licence had not been capable of construction to permit this (fairly typical) type of disaster recovery strategy, however, s 47F would not have protected RWWA. S 47F provides a limited defence for “security testing”. However:
55 What s 47F(1) permits is the reproduction of the original copy for the purpose of testing the security of that copy. The original copy is the copy RWWA is licensed to use. The permitted testing is of the security of that copy. The passages from the primary judge’s reasons quoted at [49] appear to us to be saying that the testing of the functionality of the DR Copy at the DR Site is the testing of the security of the original copy at Osborne Park. That, in our view, is not what s 47F(1) authorises. On the facts of this case, what it permits is the making of a copy of the installed copy at Osborne Park for the purpose of testing the security of the installed copy. As it seems to us, the primary judge’s construction of the provision enables the DR Copy at the DR Site to be tested so as to determine its efficacy should the installed copy at Osborne Park for some reason be no longer available.
and, given the unchallenged expert evidence on the issue:
68 For the above reasons we are unable to accept RWWA’s contention, which the primary judge appears to have adopted, that “testing … the security of the original copy” extends to what was done at the DR Site, namely testing of the DR Copy to ensure that the System would be capable of being restarted and operated without the loss of data. In our view, “testing … the security of the original copy” should be confined to testing the original to ascertain its security from unauthorised access or against electronic or other invasion.
The Court noted, but did not need to consider the correctness, of his Honour’s conclusion that s 47C would also have protected RWWA.
So, an appellate level illustration providing some confirmation of how strictly the the Courts will approach the gobbledygook enacted in the special computer program defences. Make sure you draft your software licences to provide the protection actually needed – especially if the software needs to be used in a “disaster recovery” situation.
Software AG (Australia) Pty Ltd v Racing & Wagering Western Australia [2009] FCAFC 36 (Spender, Sundberg and Siopis JJ)
Use of Software and those computer defences again Read More »