So, Steve Jobs introduced iCloud to the world yesterday.
Michael Speck from Music Industry Piracy Investigations (the people who bring down pirates like Kazaa for the record industry) declared:
Apple was “no better than the old p2p pirates”.
Now, at one level, Apple is not doing that much that hasn’t already been done before: Apple own webpage compares its service to those already on offer from Amazon and Google. Here’s another 17 Apps Mr Jobs made redundant.
Presumably, what you “buy” from Apple through the iTunes store is covered by a licence. The thing that Mr Speck is concerned about is the iTunes Match service: if you let Apple scan your hard drive it will store on the iCloud server for you copies of – according to Mr Speck – all the music you have there; you paid music and music you, er, ripped yourself including pirated music files. Tidbits’ summary of iTunes Match:
iTunes Match — What about the music you purchased elsewhere or ripped from CD yourself? For a $24.99 yearly fee, iTunes Match makes those songs available, too. iTunes uploads a list of songs in your library (much as it does now for the iTunes Genius results) and matches them (probably using music fingerprinting) against Apple’s collection of 18 million tracks. If you choose to download a track to a device where it doesn’t appear, Apple provides a version at iTunes Plus quality (256 Kbps and free of DRM), even if your original copy was ripped at a lower quality.
Hmm, so if an Australian user chooses the music files to be “matched”, that puts Apple in the territory of iiNet (unless of course Apple’s servers are “in” Australia too).
But wait you say, isn’t there a fair dealing defence? See if you can fit what is being proposed into this.
From what some of the other commentators say, however, it looks like Apple may have cut a deal with the record companies so that some percentage of the annual iTunes Match fee goes to the record companies – see the comments of Kim Weatherall and Colin Jacobs here.
If that were part of the deal with the record companies, then problem solved, but Mr Speck’s interpretation is that it just a unilateral position taken by Apple without the consent of the copyright owners.
Then, for those of us in Australia, there is another problem: when it launches, iTunes Match will be available only in the USA. It will become available in other parts of the world only when licences are negotiated with the copyright owners. Wonder how long it will take before (a) Apple gets around to negotiating with copyright owners for Australia and (b) the chances the copyright owners for Australia will agree to any of this? Remember how long it took for any copyright material to show up in the iBookstore?
On the topic of territorial copyright:
When Zengobi announced Curio Core it was priced (to US customers) at US$39.99. It’s currently available in the Apple Australia Mac App store for AU$47.99, even though the Australian $ currently buys (approx) US$1.06 (which translates into just under AU$38. You can have similar fun with lots of other items in the App stores. Choice magazine provides even more egregious examples for a host of brands.
While we’re having our dark mutterings about what might be in a “Convergence Review“, the Leaders of the Free World (or at least the Western Hemisphere) meeting at Deauville have declared:
5. We discussed new issues such as the Internet which are essential to our societies, economies and growth. For citizens, the Internet is a unique information and education tool, and thus helps to promote freedom, democracy and human rights. The Internet facilitates new forms of business and promotes efficiency, competitiveness, and economic growth. Governments, the private sector, users, and other stakeholders all have a role to play in creating an environment in which the Internet can flourish in a balanced manner. In Deauville in 2011, for the first time at Leaders’ level, we agreed, in the presence of some leaders of the Internet economy, on a number of key principles, including freedom, respect for privacy and intellectual property, multi-stakeholder governance, cyber-security, and protection from crime, that underpin a strong and flourishing Internet. The “e-G8” event held in Paris on 24 and 25 May was a useful contribution to these debates.
[Slight digression: “new” issues? plus ça change?]
The real fun, however, was at the “e-G8”.
President Sarkozy, who was convening the meeting of the Leaders, had brought together all sorts of likely people
It all started very well with M. le president declaiming:
You have changed the world. For me, you have changed the world, just as Columbus and Galileo did. You have changed the world, just as Newton and Edison did. You have changed the world with the imagination of inventors and the boldness of entrepreneurs.
However:
Also the States we represent need to make it known that the world you represent is not a parallel universe, free of legal and moral rules and more generally all the basis principles that govern society in democratic countries. Now that the Internet is an integral part of most people’s lives, it would be contradictory to exclude governments from this huge forum. Nobody could nor should forget that these governments are the only legitimate representatives of the will of the people in our democracies. To forget this is to run the risk of democratic chaos and hence anarchy. To forget this would be to confuse populism with democracy of opinion. Juxtaposed individual wishes have never constituted the will of the people. A social contract cannot be drawn up by simply lumping together individual aspirations.
and
Do not allow the revolution you began to violate people’s fundamental right to privacy and to be fully autonomous. Complete transparency, which never allows a person to rest, will sooner or later come up against the very principle of individual freedom.
Let us not forget that behind an anonymous Internet user, there is a real citizen who is evolving in a society, a culture and an organized nation to which he belongs and with laws he must abide by.
Do not forget that the sincerity of your promise will be assessed in the commitment of your companies to contribute fairly to national ecosystems.
Do not allow the revolution you began to violate the basic right of children to lives that are protected from the moral turpitude of certain adults.
Do not allow the revolution you began to be a vehicle for maliciousness, unobstructed and unrestricted. Do not allow this revolution become an instrument in the hands of those who wish to jeopardize our security and in doing so, our freedom and our integrity.
You have allowed everyone, with the mere magic of the Web, to access all the cultural treasures of the world in a simple click. It would be something of a paradox if the Web contributed to draining them over time.
The immense cultural wealth that provides our civilizations with such beauty is a product of the creative forces of our artists, authors and thinkers. Basically, it is the product of all those who work on enchanting the world.
Yet these creative forces are fragile because when creative minds are deprived of the fruit of their talents, they are not just ruined, what’s worse, they lose their independence, they will be required to pawn their freedom.
Unfortunately, this didn’t meet with such a good press (at least in those parts of the (western) world that Napoleon didn’t conquer). For some of the adverse press: here, here, here, here. Maybe, the President said something more specific in unscripted comments as the press and Prof. Lessig all react to suggestions that the rest of the world should be introducing the 3-strikes regime of the loi hadopi (France and France again and NZ) and, in another reverberation DownUnder, the rights of governments to censor what their citizens read or do on the internet.
Prof. Lessig was willing to concede that (for intellectual property rights) the question is not whether there should be copyright protection – “No-one serious denies this” – the question is how copyright should be protected in the age of the Internet. On this question, he sharply disagreed with M. le president. The President’s solutions were answers provided by incumbents. And such answers, Prof. Lessig says, should be treated with (too put it mildly) skepticism:
From the Hargreaves Report (UK)
Instead, Prof. Lessig pointed out, the future of the Internet is not:
Twitter
Facebook
Google
(he hopes) Rupert Murdoch,
the future of the Internet is not here (yet). We need to be careful lest the rules we put in place today (at the behest of incumbents) foreclose the emergence of new developments or lose sight of reality.
Now, of course, Prof. Lessig is engaging in polemical advocacy (just as Pres. Sarkozy was), but the point he raises is important and it is important that “we” get it right. One must accept that the State can lay down rules for its citizens’ use of the internet, just as it can lay down rules for all other aspects of its citizens’ lives. Apparently, this even applies in the USA, but in the UK may be not or may be. The question is: what rules (if any) should it lay down and whose views should it be listening to?
You can watch Prof. Lessig’s speech (which I recommend you do just long enough to admire the space age Stage that proves we really are living in the future) then switch over to the slideshow for the lesson (do persevere past section 1, the alcoholic(s)).
The link to the official (English translation of) the text of President Sarkozy’s speech.
The US Supreme Court has ruled that liability for inducing infringement of a patent under US law requires knowledge of the patent or something called ‘wilful blindness’ to the patent’s existence.
Patently-O summarises and includes a link to download Global-Tech Appliances, inc. v. SEB S.A.
Now, I do know that their law is different to our law.
For a start, under our law infringement can lie in ‘authorising’ the infringer, not (just) inducing the infringement or that idea of contributory infringement – the patentee’s exclusive rights under s 13 include the right to authorise someone to exploit the patent as well as to exploit the patent.
In Ramset, the Full Court traced the old case law: you couldn’t be liable for ‘merely facilitating’ someone else to infringe by supplying materials to them, even if you knew they were going to use them to infringe. If your involvement was sufficient to amount to a common design, or procuring their infringement, however, which generally seemed to presuppose some knowledge of the patent – you could be liable.
Ramset itself knew of the patent’s existence in 1987, several years before it issued the brochure with instructions on how to assemble its product and use it in a way that infringed.
But, on general principles, liability for authorisation requires two elements: (1) that someone has done something which infringes the patent (or threatens to do so in a quia timet case) and (2) the alleged authoriser has done something, or may be supplied something, to entice (to use yet another synonym), induce, persuade or encourage the first person to do that infringing conduct.
The first person, the primary infringer, can be liable even if they do not know that there is a patent – they might escape liability for damages or an account in view of their innocence: see s 123. Why shouldn’t that also apply to the alleged authoriser. Indeed, s 123 would seem equally applicable to the alleged authoriser. And that indeed is the position that Bennett J has reached in Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Ltd [2010] FCA 108, for example.
The copyright cases on authorisation go so far as to hold that, at least in some circumstances, a person who stands by with knowledge that infringing conduct is occurring, or may be is likely to occur, will be liable as an authoriser where they have power to do something about it. Perhaps, we’ll get a better understanding of what is the quality of that power to do something if the High Court grants special leave to Roadshow in the iiNet case.
On 28 April, the Government’s Convergence Review (noted here) issued a Framing Paper.
According to p. 4 of this curious document:
This initial consultation paper seeks to identify the principles that should guide media and communications regulation in Australia, and provide stakeholders with the opportunity to raise the key issues arising from the principles. Its intent is to invite big-picture thinking about the Australian media and communications environment in its global context and how it may need to be shaped in order to achieve principles that serve the public interest. The committee will use these principles as a starting point to advise government of its preferred alternative policy framework
Accordingly (from p. 11):
the committee considers it appropriate to develop and consult with stakeholders on a set of principles to guide the committee’s consideration of specific issues. These principles have two main aims: to provide a consistent and transparent basis on which to consider specific issues and to ultimately form the basis of a set of policy objectives suitable for a converging media environment.
So your comments on the Framing Paper are sought by 10 June 2011. Then, the timetable is:
Emerging Issue paper : June 2011
Hearings: July 2011
detailed Discussion Papers: August 2011
Final Report: March 2012.
For the most part, the Framing Paper appears to relate to the regulatory regimes for broadcasting and telecommunications.
When announcing his intention to refer aspects of copyright law to the ALRC, the Attorney-General appeared to indicate that the reference (if any) will be subject to what happens in this Convergence Review. It is not so easy to identify from the Framework Paper, however, what areas might be cut across by the ALRC reviewing copyright law.
The Framework Paper does refer in several papers to “legitimate content services”. May be, it is to be found in “principle 6” which is (proposed to be):
Principle 6: Australians should have access to the broadest range of content across platforms and services as possible
This principle is taken from paragraph 5(e)(ii) of the Terms of Reference and is consistent with the objects in the BSA12, and s.3(1)(a) of the Telecommunications Act to ‘Promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.’ The committee considers that a guiding principle for the review is to maximise the range of legitimate content services available to Australians. A consideration is that regulation should be flexible and adaptable to changing market and technological circumstances, and constructed with a view to enhancing audiences and consumer choice.
Principle 7 appears to be directed more to the question of ‘net neutrality.
Nilay Patel at Thisismynext.com has embarked on an in depth examination of Apple’s new court action against Samsung.
Unlike the spectacularly unsuccessful war against Windows (based on copyright and ‘look and feel’), this action involves:
* patents;
* design patents; and
* trade dress.
The “thing that distinguishes this case from Apple’s other actions against other Android products is the trade dress component (and the piquancy of Samsung being a supplier of major components for the iPhone and the iPad).
Now, this case is not being brought in Australia but, if it were, one would wonder about the trade dress prospects given the clear Samsung branding in light of Parkdale v Puxu and its progeny such as Playcorp v Bodum. The only case where the trade dress got up in the face of clear branding is really the Jif Lemoncase, in which there was survey evidence showing an overwhelming preponderance of supermarket shoppers declaring they had bought a Jif Lemon, notwithstanding the swing tags and other clear branding.
Those cases did not, of course, involve design registrations as well (or the functional patents). And, even on trade dress, Apple’s complaint is at great pains to point out the level of detail at which resemblances can be drawn.
Mr Bohdan Zograf has very kindly translated the IPwars post on Telstra v PDC into Belorussian for the benefit (one hopes) of everyone in Belorussia interested in IP!
Those of you with the appropriate linguistic skills can see it here.
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 film studios have announced they have sought special leave to appeal from the Full Federal Court’s 2-1 decision dismissing their claim that iiNet infringed their copyright by ‘authorising’ its subscribers’ infringing activities.
