Copyright

iiNet and the movie studios

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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

Earlier background on the case here and here.

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Embedding rights management information in photos

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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.

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Use of Software and those computer defences again

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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 »

Pirated software at work

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Over at Slashdot you will find some thoughtful (and practical) suggestions about what to do (from the in-house IT guy’s perspective) if you (or your client) finds pirated software at work – be warned, you have to scroll through the usual behind the shelter shed contributions.

Lid dip: Marty

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Trying to appeal a finding that you copied

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(and therefore infringed???) is very hard:

Carlisle lost its appeal against the finding that it infringed Barrett Property Group’s copyright int eh Seattle and Memphis – the second of the alfresco cases.

51 In our opinion, the appellant’s submissions must fail.

52 The context in which the appellant’s submissions must be considered is an appropriate starting point. Two points are important. First, it is not suggested by the appellant that a judge, after a proper examination of the evidence, could not reach the conclusions which were in fact reached by the primary judge. In our opinion, a judge, after a proper examination of the evidence, clearly could reach the conclusions which were in fact reached by the primary judge. The handwritten notes of Mr Megens and of Mr Feldman make no mention of the Rochester and neither of them had any recollection of any mention of the Rochester. It is undoubtedly true to say, as the primary judge did, that, in view of the alleged importance of the Rochester to the derivation of the design, one would have expected that the legal practitioners at the conference would have made a note of it had it been mentioned. Secondly, Mr Megens gave his evidence in chief by affidavit and by way of a limited number of oral answers to questions. His affidavit referred to his handwritten notes and typed notes of the conference which notes were exhibited to his affidavit. He did not give any further evidence of his recollections of the conference in his affidavit.

The Court then considered each of the appellant’s arguments and rejected them or found that the primary judge had taken the point into account.

Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31

Kim on the monopoly in the alfresco.

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3 strikes in Kiwi land

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Looks like New Zealand will be repealing its law imposing a “3 strikes” ban requiring ISPs to cut off infringing downloaders.

Howard has the news at Excess Copyright. Imagine how much lobbying is going to take place now? How long before the USTR has to fly all the way down “here”?

Howard also links to an interesting article about the settlement by Eire’s biggest ISP.

Our law, s 116AG, already gives the Court power to order an ISP to do this and, of course, the case against iiNet is still winding its way through the legal process.

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Productivity Commission on parallel imports

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The Productivity Commission has released its draft report into the copyright restrictions on parallel importing books:

Australia’s Parallel Import Restrictions (PIRs) for books should be modified as follows. 

• PIRs should apply for 12 months from the date of first publication of a book in Australia. Thereafter, parallel importation should be freely permitted. 

• If a PIR-protected book becomes unavailable during this 12 month period, then parallel importation should be freely permitted until local supply is re- established, or the expiry of the 12 month period allows for generalised parallel importation.  

• Booksellers should be allowed to overtly offer an aggregation service for individual orders of imported books under the single use provisions. 

All other aspects of the current PIR arrangements should continue unchanged, including the 30 day rule. 

All to be topped up with what appears to be the now mandatory 5 year review to see if it’s working.

I wonder how many books your local bookseller will have to order at once before he or she will start to consider absorbing the cost of freight? Of course, we can always hope that they also find out about addall.com and all those other internet sites rather than using that complicated clunky thing they play with on their computers while you are growing a beard.

Links to the full report here.

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Copyright in a superhero

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Nic Suzor explores whether you might be infringing copyright in Australia when you dress your character (is that an avatar?) up in your favourite online world as a SuperHERO! 

Which superhero would you be? Hercules or Captain Dylan Hunt?

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Kindle out loud

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According to Excess Copyright, Amazon has backed down in its fight with the (American) Authors’ Guild and authors and publishers will be able to block the text to speech function if they want.

Links from Howard’s post to the Guardian report and Lawrence Lessig.

So the musing here is even more academic than usual.

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Irish ISP and 3 strikes

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IPKat reports that the case in Eire in which the record companies sued the ISP, Eirecom, has settled after 8 days of the scheduled 4 weeks of trial.

Amongst other details, the ISP adopted a 3 strikes policy and the record companies deployed a service to monitor (entrap?) file”sharers”.

Read more here.

Some other background and 3 other strikes here, here, here and here.

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