What happens on the Internet in 60 secs
70+ domain names registered
13,000+ iPhone apps downloaded
600+ new videos uploaded to YouTube …
See the Infographic
via Peter Black
What happens on the Internet in 60 secs Read More »
iTunes Match and making Prof. Lessig’s case
Recap: Prof. Lessig’s argument.
You will remember that Michael Speck from Music Industry Piracy Investigations was outraged by Apple’s pending iTunes Match service and, in particular, the part where the service would in your iCloud account copies of music on your hard drive which had not been bought through iTunes.
At the time, it wasn’t clear (at least to me) whether Apple was going all gung-ho and just offering this unilaterally or had the agreement of the record companies to this.
Of course, if the record companies had agreed to this, it would be rather hard for them, or their representative, to complain about the pirate’s charter.
Jonathon Bailey, at Plagiarism Today, reports here that Apple is in fact offering the service in the USA with the agreement of the record companies. He also goes on to discuss indications that this is all part of a clever new strategy by the record companies to combat piracy – one of the indications he identifies includes recent reports that the music industry in Australia is not pursuing a 3 strikes policy (at least as strongly) as the movie industry.
Swerving to another aspect: the iTunes Match service Steve Jobs announced was for the USA only. Media reports suggest it will take up to 12 months for the service to be extended to the UK and speculate other countries will have similar delays.
Copyright is, of course, a territorial right and there are often different owners and licensees for different territories (i.e., countries). Thus, just because you have consent from the (or a) copyright owner in one country does not give you rights to do the same thing with the corresponding copyright in another country. No doubt, therefore, a large part of any delay will be attributable to the need to negotiate separate arrangements with the owners of copyright in different territories.
So the delay reported in the media should come as no surprise. That shouldn’t come as too much of a surprise to those in Australia who monitored, for example, how long it took for the iBookstore to get any “in copyright” content. Perhaps, if Mr Speck’s view is representative of the views of the copyright owners in Australia, the wait would be even longer – what an economist might describe as “infinitely long”.
All of which goes to highlight, as representatives around the world assemble in Geneva to debate extending copyright and introducing limitations for visually impaired readers, why are we still dealing in the 21st century with territorial rights for electronic rights which can be accessed virtually instantaneously from virtually anywhere in the world?
Oh, perhaps it’s not just an electronic “problem”. This product is advertised for sale in the USA for US$399. You can buy it here for AUD$699 or (depending on exchange rate fluctuations) approximately US$736. (By the way, I am certainly not recommending that you do buy the product from either source, I have no experience with it.) Almost makes you wonder where’s Prof. Fels?
iTunes Match and making Prof. Lessig’s case Read More »
Microsoft v i4i – US Supreme Court decides
Microsoft has lost its appeal to the US Supreme Court.
Microsoft had argued it should have to prove its claim that i4i’s patent was invalid by “a preponderance of the evidence”.
Under the US Patent Act, however, a patent having been granted after examination by the Commissioner is “presumed valid”. The US Supreme Court has ruled that “presumed valid” in this context had a settled common law meaning which Congress was presumed to have adopted. As a result, Microsoft had to make its invalidity case “by clear and convincing evidence”. That is, there is a strong presumption of validity in the USA.
Microsoft Corp v i4i Limited Partnership
Initial commentary by Patently-O.
The case initially attracted international attention as Microsoft was ordered to stop selling versions of Word which had the capability of opening a .XML, .DOCX, or .DOCM file (“an XML file”) containing custom XML. This presumably means that Microsoft will have to pay the US$290 million damages awarded against it for infringement.
Under Australian law, a person alleging a granted patent is invalid has the onus of proof on the usual balance of probabilities standard.
A person opposing the grant of a patent, however, has to establish their case on the clear and convincing or practically certain standard. The exposure draft of the “Raising the Bar” amendment legislation proposes changing that standard, and the standard for acceptance, to the balance of probabilities standard too. (See items 14 and 15 of Sch. 1 (pdf) and pp 26 – 30 of the (draft) EM (pdf).
Patently-O speculates from the voting alignment of the current Court that the US Supreme Court is now shifting “to the right” or “pro-patentee”.
Microsoft v i4i – US Supreme Court decides Read More »
Helping make Prof. Lessig’s case for him
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.
What Prof Lessig’s case is.
Helping make Prof. Lessig’s case for him Read More »
Government responses to ACIP enforcement reviews
The Government has announced its responses to ACIP’s reviews of:
On a quick skim, the main recommendation to introduce a Patents Tribunal to determine “IP” disputes has been found non-viable due to the limitations on the Commonwealth’s repository of judicial powers. With WIPO’s arbitration and mediation service in mind, however, IP Australia is to work with alternative dispute resolution providers to provide a new ADR resource. In the PBR context, the Government states that it does not consider it appropriate for IP Australia, as a regulatory agency, to provide post-grant mediation services itself.
The review on PBR has received rather mixed results.
The Government has not accepted the proposal to introduce a “purchase” right.
The PBR Act will be amended to clarify that harvested material which can also be used as propagating material qualifies as propagating material for the purposes of the Act’s prohibitions.
The Government accepts that no changes to the operation of ss 14 and 15 are required.
At this stage, the Government considers that the making of “mendacious” declarations of PBR is adequately covered by the prohibitions on misleading or deceptive conduct in trade or commerce.
Lots of recommendations for more education.
No doubt, you will have your own favourite recommendation(s), but (as I am not a Kat, ip or otherwise) that is all there is time for today!
The Minister’s Getting Tougher on Imitators press release.
ACIP’s “patents” review (pdf).
ACIP’s PBR review (pdf).
Government responses to ACIP enforcement reviews Read More »
Lessig at e-G8 or Le civilised Internet vs gales of creative destruction
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
[such as Eric Schmidt, Mark Zuckerberg, Jeff Jarvis and Prof. Lessig]
and issued a clarion call for Le Civilised Internet.
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:
Instead, Prof. Lessig pointed out, the future of the Internet is not:
- (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.
For Hargreaves and some reaction.
The G8’s 2011 communique.
If you still need more on ‘creative destruction’ after watching Prof. Lessig, start here.
Lid dip: Peter Black at Freedom to Differ.
Lessig at e-G8 or Le civilised Internet vs gales of creative destruction Read More »
Inducing patent infringement in the USA
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.
Inducing patent infringement in the USA Read More »
Affinage and A.S.P. 2
For completeness, I should note that IHC UK has appealed Logan J’s decision earlier this month finding that it infringed IHC Australia’s registered trade mark for AFFINAGE. Summary here.
Interestingly, Logan J has granted a stay of his order to remove all references to A.S.P. from IHC UK’s Web site at www.affinage.com.
You will recall that IHC UK owns AFFINAGE outside Australia and had adopted A.S.P. at least partly to deal with the fact that it could no longer use “its” trade mark in Australia.
Logan J appears to have considered a stay pending the outcome of the appeal was in order as IHC UK:
- Had removed all references to Australia (including the drop down country box) from its web site at www.affinage.com;
- IHC UK was having some sort of global re-launch of A.S. P. in the UK soon, involving 150 or so distributors from around the world;
- His Honour accepted that the decision that the modified Web site infringed had been a “difficult one”; and
- IHC Australia had not sought damages and it was difficult to identify what damages might flow from the stay.
His Honour did not think that he needed to order a stay of 7 days of his orders relating to the removal of references to Australia from www.affinage.com. That stay had been sought out of an abundance of caution and IHC UK was generally trying to comply with the orders so it appeared a breach, if any, would have been inadvertent.
International Hair Cosmetics Group Pty Ltd v International Hair Cosmetics Limited (No 2) [2011] FCA 540
For the orders under appeal, see International Hair Cosmetics Group Pty Ltd v International Hair Cosmetics Limited [2011] FCA 339
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How wide should injunctions be
Following on from his ruling that Idameneo’s use of its trade mark breached its contractual obligation not to use a trade mark capable of being confused with Symbion’s trade mark, Jessup J has granted an injunction:
The Respondent be permanently restrained, whether by itself or through its subsidiaries from using the Respondent’s Mark.
Three aspects for comment:
First, Symbion sought and his Honour refused to grant an injunction that Idameneo not use its trade mark or “any trade mark, device, brand or logo which is similar to or capable of being confused with” Symbion’s trade mark (i.e., reflecting the terms of the contractual obligation).
In support of that application, Jessup J was referred to a number of cases proclaiming that the usual form of order for infringement of an intellectual property right was an order restraining the respondent from infringing the applicant’s [intellectual property right]. His Honour pointed out, however, that none of those cases established that such an order should be made in the case of breach of contract as a matter of principle.
Jessup J accepted that such a wide injunction might be an appropriate exercise of discretion in a particular case. However, there was nothing in this case which warranted that course:
here is nothing in the facts – or in the dynamics – of the present case which would provide any basis for the suspicion that, if it were precluded from using its present mark, the respondent would devise some artful similarity of the applicant’s mark, or would “sail close to the wind” as it is occasionally said. If the orders which I made on 13 May 2011 stand, the respondent will be obliged to rebrand its business, its sites and its stationery. Nothing suggested by the applicant, and nothing which otherwise occurs to me, would give reason to suspect that the respondent would have the slightest interest in adopting a new logo or image which was confusingly similar to the applicant’s mark. If, contrary to this expectation, the respondent were to do so, it is true that the applicant would be obliged to bring fresh proceedings, but I have little doubt but that the court would not then be readily forgiving of the respondent for failing to keep a sufficient distance between its own new mark and that by reference to which the applicant succeeded in this proceeding.
Secondly, despite the terms of the injunction, Jessup J supplemented it with a further order to:
remove and destroy all signage, corporate stationery, flyers, posters, leaflets, brochures and any other promotional, advertising and marketing materials (whether in hard copy or electronic format) and garments which bear the Respondent’s Mark and which are in the possession, power, custody or control of the Respondent or its subsidiaries
and to deliver up an affidavit confirming all that mayhem has taken place.
Finally, his Honour granted a stay of the injunction – for 6 months or, if Idameneo appealed, for 6 months from the date the appeal was concluded. There is no discussion of the reasons for the stay, so it appears to have been uncontroversial between the parties.
Symbion Pharmacy Services Pty Ltd v Idameneo (No 789) Limited (No 2) [2011] FCA 531
Thirdly,
How wide should injunctions be Read More »
A lamp lens too far
The fifth decision under the “new” Designs Act 2004 illustrates the operation of that old principle: in a crowded field, small differences may be enough to confer validity, but equally small differences in the accused products will be sufficient to avoid liability.
You will recall that LED Technologies successfully sued Elecspess (and others) for infringing LED’s registered designs for a dual lens lamp, ARD 302359, and a triple lens lamp, 302360 (links to those decisions via here). Well, LED fell out with its Chinese manufacturer, Valens, and found itself a new supplier. Valens, however, didn’t take things lying down and started supplying another of LED’s competitors, Baxter.
As in the earlier case, Baxter challenged the validity of the earlier design; this time arguing that the Statement of Newness and Distinctiveness was unclear and also relying on some different prior art.
The first objection failed. The perspective view for the two-lens design looks like this:
The Statement of Newness etc. etc. read:
Separate clip in lenses. Base to take a variety of 2, 3 or 4 combination of lenses for stop, tail, indicator, reverse LED lenses, no visible screws.
- At [85], Finkelstein J accepted that the Statement of Newness etc. etc. could have been “better expressed”, but it sufficiently clear and succinct:
- …. In my view the statement indicates clearly to the relevantly informed addressee (and probably to anyone familiar with the English language) that the base could be manufactured to take a number of lenses. Reference to “separate clip in lenses”, when read with the phrase “no visible screws”, indicates that the lenses clips in and are not held in place by screws. There is nothing relevantly uncertain contained in the statement.
- There were important visual differences between LED’s designs and the closest prior art. For example, at [104]:
- the base of the Rubbolite lamps appeared to provide individual frames for each lens, which is not a feature of the registered designs. … the corners of the Rubbolite lens appeared sharper or squarer than the registered designs but said the difference was minor. … there was a noticeable ledge or lip around the lens (which he referred to as the “lens housing”) which was not shown on the registered designs. The ledge or lip around the lens on the Rubbolite lamps tapered inwards which made it substantially different in appearance when looked at from the side.
- Hence, the registered designs were valid.
- Unfortunately (for LED), before Valens started supplying Baxter, it had made some changes to the product. As a result, the products supplied to Baxter were not substantially similar in overall impression to the registered designs. Finkelstein J accepted [105] that there were similarities between the products imported by Baxter and the registered design. Many of them, however, “were common in the prior art”. Moreover:
- [106] There are, to my mind, several important features that lead me to the conclusion that the Baxters lamps are not substantially similar in overall impression to the registered designs. The key features are the prominent cut out pattern on the underside of the designs, which is to be contrasted with the flat closed backs of the Baxters lamps, and the square lenses of the designs having a wide landing between them while the Baxters lights have no landing. Of less significance are the long sides of the frames of the registered designs which have raised edges resulting in a counter-sunk appearance, which is not present on the Baxters lamps. As well, the short sides of the frames of the registered designs are raised at their outer portions and dip down in the central portion, which is not a feature of Baxters’ design.
- [107] Moreover, in my view, it is these features that distinguish the registered designs from the prior art such as to admit of the conclusion that the registered designs are new and distinctive.
Inducing breach of contract
An interesting twist to this case, was that LED also tried to “get” Baxter for inducing the (ex-) Chinese supplier, Valens, to breach its contract with LED.
Essentially, LED argued it had agreed with Valens that Valens would not supply anyone else in Australia or New Zealand with products made using the moulds for the products supplied to LED. The evidence on this point was less than ideal, with the judge being rather critical of the witnesses. There was also a dispute between LED and Valens over who owned what. Ultimately, his Honour accepted that there was a deal that LED would be supplied exclusively for Australia and New Zealand so the supply of products to Baxter was in breach of the agreement. However, Baxter itself did not procure the breach: Baxter did not know Valens was re-using the moulds: to the contrary, it was paying Valens for new moulds.
It is rather hard to reconcile the story in Elecspess on how the designs came into existence and came to be manufactured with the evidence in this case. Of course, as the parties in the two cases are different, each must be decided on its own evidence. I guess, in terms of ownership of the registered designs, there is commonality in that LED’s principal, Mr Ottobre, was the author of the original conception. Matters get rather murky after that. At [30], LED apparently started selling the lamps made by Valens in “early 2004”, but the priority date of the designs is 22 June 2004.
LED Technologies Pty Ltd v Roadvision Pty Ltd [2011] FCA 146
A lamp lens too far Read More »