Saturday, December 08, 2012

Netflix Facebook Blunder?


Netflix Inc said on Thursday securities regulators warned they may bring civil action against the company and its chief executive for violating public disclosure rules with a Facebook post, in a case that raises questions about how public companies communicate on social media.
The high-profile Silicon Valley CEO, Reed Hastings, dismissed the contention and said he did not believe the Facebook post was "material" information.

Saturday, December 01, 2012

Friday, November 30, 2012

Google Street View Privacy Lawsuit

A privacy claim was made against Google for its StreetView product.  A Google camera car drove on to private property to take the photos.

See Boring v. Google.  Original DecisionThird Circuit decision

Wednesday, November 28, 2012

Is Law School Worth The Money?

See NY Times Article

"The graying of baby-boom lawyers creates opportunities. As more senior lawyers retire, jobs will open, even in the unlikely case that the law business doesn’t expand with an improving economy. More opportunity will open to women and minorities, too. As with any industry in transition, changes in the delivery of legal services create opportunities as well as challenges. Creative, innovative and entrepreneurial lawyers will find ways to capitalize on this."

Sunday, November 18, 2012

You Can't Say That on The Internet

A BASTION of openness and counterculture, Silicon Valley imagines itself as the un-Chick-fil-A. But its hyper-tolerant facade often masks deeply conservative, outdated norms that digital culture discreetly imposes on billions of technology users worldwide.

See NY Times

Monday, November 05, 2012

Copyright First Sale Doctrine Reviewed by Supreme Court


Can United States copyright owners block importation of copies of their works sold or distributed outside of the United States?

Confronting this apparently straightforward question, the U.S. Supreme Court heard oral argument on 29 October 2012, that revealed complex interactions of the relevant statutes and the difficult consequences flowing from alternative interpretations of those statutes. Kirtsaeng v. John Wiley & Sons, U.S. No. 11-697.  See oral argument transcript.

The case involves Wiley text books printed and sold in Thailand, and Kirtsaeng’s unauthorized importation and resale of those text books in the United States. Wiley sued, claiming that the importation was an infringement under 17 U.S.C. 602(a), and Kirtsaeng defended that he had a right to resell the publications purchased in Thailand under the first sale doctrine codified at 17 U.S.C. 109(a).

On review is the Second Circuit’s decision for Wiley that the text books printed in Thailand could not satisfy the limitation in Section 109(a) that the first sale right applies only to copies “lawfully made under this title,” which the Court interpreted as copies physically made in this country.

Sunday, November 04, 2012

Google Liable for Defamation Based on Search Results

In a jury trial in Melbourne, Google was found to have defamed a Melbourne man by placing his photo next to underworld figures.

See SMH and WebProNews and IBT

Saturday, November 03, 2012

Australian Domain Name Resales


Top 10 public .com.au domain sales
Source: domainerincome.com

Hardware.com.au - $33,333
Electricity.com.au - $30,933
Currencyconverter.com.au - $27,500
Websitedesign.com.au - $22,000
1300numbers.com.au - $20,000
Vitamins.com.au - $20,000
Fridges.com.au - $20,000
Wines.com.au - $19,000
Carparts.com.au - $18,011
Freestuff.com.au - $18,000

See: SMH

Tuesday, October 16, 2012

Do Not Track

THE campaign to defang the “Do Not Track” movement began late last month.

See:  NYT

Monday, October 15, 2012

Why are Google Maps So Much Better

This is a good post that explains why Google Maps are so good.  And see also this Atlantic article.  Some people have said that maps are the future of Google.  Photos below of Google Street View Bike People and Hiker.



Saturday, October 13, 2012

Software and Internet Patents


The U.S. Federal Circuit on October 9, 2012 granted en banc review of a case in which a Federal Circuit panel held that a claim must not be deemed inadequate under 35 U.S.C. §101 if, after taking all of the claim recitations into consideration, it is not “manifestly evident” that a claim is directed to a patent ineligible abstract idea. CLS Bank International v. Alice Corp., Fed. Cir., No. 11-1301, 10/9/2012.  Alice Corp is an Australian company, suing for patent infringement in the United States.

The en banc court vacated the panel decision and requested briefing on the following questions:
  1. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible "abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?
  2. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?
The panel decision stressed that patent eligibility must be determined by what is evident from specific, concrete applications of the ideas behind an invention disclosed in the claims. The panel opinion, written by Judge Linn in the wake of the Supreme Court’s decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc.,  132 S. Ct. 1289 (2012), included the following observation:
[N]othing in the Supreme Court’s precedent, nor in ours, allows a court to go hunting for abstractions by ignoring the concrete, palpable, tangible, and otherwise not abstract invention the patentee actually claims. It is fundamentally improper to paraphrase a claim in overly simplistic generalities in assessing whether the claim falls under the limited “abstract ideas” exception to patent eligibility under 35 USC §101. Patent eligibility must be evaluated based on what the claims recite, not merely on the ideas upon which they are premised.

The challenged patents in this case are directed to a computerised trading platform for exchanging obligations in which a trusted third party settles obligations between a first and second party so as to eliminate “settlement risk.” The district court granted a summary judgment motion that the claims were not patent eligible because they are directed to an abstract idea. On appeal the Federal Circuit panel reversed, concluding that the system, method, and media claims are directed to practical applications of an invention falling within the categories of patent eligible subject matter defined by Section 101.
To read the Court’s order for en banc review, click here; to read a summary of the panel decision and obtain a copy of Judge Linn’s opinion, click here.

Thursday, September 27, 2012

Hobart.com Domain Name Sale

An Australian domain name company has sold Hobart.com.au for $65,000 to a website hosting business after purchasing the website for just $875 back in 2005, highlighting the potential riches in buying and selling geographic domains.
See Article

Wednesday, September 26, 2012

Google Sued in New Zealand, and wins

Google NZ was sued for defamation.  The lawsuit was dismissed on summary judgment, because it was decided that the Google NZ entity was not carrying on business in New Zealand and had no control over the search engine.  The court left open the question of whether Google is responsible for defamatory material that it produces from its search engine.
See NZ Court Decision (A v. Google New Zealand Ltd) and comment.

Facebook Photo Removed

A business was found to have breached advertising standards in relation to a photo on Facebook.  See Smart Company

Tuesday, September 25, 2012

Donuts Applies for Most gTLDs

The single most aggressive bidder for lucrative new web domains is a little-known investment group: Donuts Inc. Its $57 million play for 307 new domains - more than Google, Amazon and Allstate combined - has prompted alarm among industry groups and internet watchdogs.

See SMH

Wednesday, September 12, 2012

Employees Violating Computer Misuse Policy

In July, the Fourth Circuit weighed in on the scope of the Computer Fraud and Abuse Act (CFAA) in WEC Carolina Energy Solutions, LLC v. Miller and found that the CFAA is not broad enough to impose liability on an employee who has lawful access to his employer's electronic information but later misuses that information - such as by stealing the employer's electronic trade secrets. In taking this narrow approach to the CFAA and siding with the Second and Ninth Circuits, the Fourth Circuit has widened the circuit split over whether the CFAA applies to disloyal employees who violate the computer use policies of their employer. In this Legal Alert, Audra Dial and John Moye discuss the Fourth Circuit's recent ruling and its impact for employers drafting computer use policies as well as companies pursuing trade secret claims through the CFAA.

See kilpatrickstockton.com

Thursday, August 30, 2012

New Cyber Data Laws

See Cyber Data Law story.

"NEW laws will allow authorities to collect and monitor Australians' internet records, including their web-browsing history, social media activity and emails. But the laws, which will specifically target suspected cyber criminals, do not go as far as separate proposed laws designed to retain every Australian internet user's internet history for two years in the name of national security. Under the laws passed yesterday, Australian state and federal police will have the power to compel telcos and internet service providers to retain the internet records of people suspected of cyber-based crimes, including fraud and child pornography. Only those records made after the request will be retained, but law enforcement agencies will be prevented from seeing the information until they have secured a warrant."

Wednesday, August 29, 2012

Publicity Monster

An interesting story about a company that promised to improve your Google rankings.
See Publicity Monster Investigated.

Tuesday, August 28, 2012

Saturday, August 25, 2012

Apple beats Samsung in Court - First Reactions

Apple won one of the largest patent damages awards against Samsung.  First reactions.  News Report.  Will this impact the Australian court cases?

Monday, August 20, 2012

Copyright and the Digital Economy Issues Paper


The Australian Law Reform Commission (ALRC) released the Issues Paper for its current inquiry into Copyright and the Digital Economy.

Headed by Professor Jill McKeough (Dean of Law at the University of Technology, Sydney), the review is focusing on the suitability of current exceptions and statutory licences in the evolving digital marketplace.

See Note here.

Friday, August 03, 2012

Paypal Over Zealous and Uncaring?

From The New York Times:
Some PayPal Users Criticize Antifraud Measures

Some of the payment service’s users say the company needlessly freezes their accounts when large transactions are involved.

http://nyti.ms/QuD0EC

Tuesday, July 31, 2012

Smirnoff Responsible for Comments of Users on Facebook

The Board considered that the Facebook site of an advertiser is a marketing communication tool over which the advertiser has a reasonable degree of control and could be considered to draw the attention of a segment of the public to a product in a manner calculated to promote or oppose directly or indirectly that product. The Board determined that the provisions of the Code apply to an advertiser’s Facebook page. As a Facebook page can be used to engage with customers, the Board further considered that the Code applies to the content generated by the advertisers as well as material or comments posted by users or friends.”


See Diageo Australia 

Friday, July 27, 2012

Computer Patent - Patentable Subject Matter

A system claim which includes as a limitation a computer to perform steps in a method is ineligible for patent protection under 35 U.S.C. §101 as a claim to an abstract idea because the computer functions solely as an obvious mechanism to solve a problem quickly, the Federal Circuit held July 26, 2012. Bancorp Services, L.L.C. v. Sun Life Assurance Company of Canada (U.S.), Fed. Cir., No. 2011-1467, 7/26/12.

The asserted patents are directed to systems and methods for administering and tracking the value of life insurance policies in separate accounts. The Federal Circuit affirmed a district court summary judgment that the patents are ineligible for patent protection because the claimed computer components are no more than objects that facilitate the operation of claimed methods directed to an abstract idea. It held that a machine, system, medium, or the like may in some cases be equivalent to an abstract mental process for purposes of patent ineligibility.

To read the Court's opinion in this case, click here.

Thursday, July 26, 2012

Online Auctions - Terms Unfair

See Malam v Graysonline, Rumbles Removals and Storage (General) [2012] NSWCTTT 197
  1. The CCAAC then went on to recommend that “online transactions (including online auctions such as eBay) should be covered by the national statutory consumer guarantees in the same way as in-store transactions” (Recommendation 10.1, page 111).
  2. In the light of this recommendation, and the clear intention of the Australian Consumer Law to provide wide ranging protection for consumers, I consider that the purpose of provision will best be met by limiting auctions to physical auctions where the consumer does have the opportunity to inspect the goods before purchasing, analogous to in-store transactions.
  3. In the circumstances, I am not satisfied this arrangement was a sale by auction and therefore s. 54 and 55 of the Australian Consumer Law apply.

Tuesday, July 24, 2012

Google's Top Lawyer: Some Apple Inventions are Commercially Essential, Should Be Made Into Standards

Apple CEO Tim Cook has said that he wants other companies to "invent their own stuff", and that Apple shouldn't be "inventor for the world". 

Google General Counsel Kent Walker disagrees, and this month wrote a letter to the US Senate Judiciary Committee arguing that commercial inventions that impact "consumer welfare" should be just as important as technical patents.

See Here

e-book pricing

On Friday, the Department of Justice responded to the over 800 comments filed in its settlement with a group of publishers over e-book pricing. The Department responded as part of the Tunney Act proceeding for the settlement, while it is in the midst of litigating the same Complaint against Apple and publishers that did not settle.
The response can be found here: http://www.justice.gov/atr/cases/f285300/285315.pdf.
The comments are posted online and can be found here: http://www.justice.gov/atr/cases/apple/index.html

Monday, July 23, 2012

Apple v. Samsung

The Apple v. Samsung patent case restarted in Federal Court of Australia today.  See Sydney Morning Herald

Thursday, July 12, 2012

U.S. Federal Circuit Responds to Supreme Court on Patent Eligibility

Reversing a summary judgment of patent ineligibility under 35 U.S.C.§101, the Federal Circuit in a 2-1 decision responded to the Supreme Court’s recent decision in Prometheus v. Mayo with the caution that patent eligibility must be decided by examining claims for specific, concrete applications of the ideas behind an invention.  CLS Bank v. Alice Corp., Fed. Cir., No. 11-1301, 9 July 2012.  Alice Corporation Pty Ltd is an Australian corporation.

According to the Court, if, after taking all of the claim recitations into consideration, it is not “manifestly evident” that a claim is directed to a patent ineligible abstract idea, that claim must not be deemed for that reason to be inadequate under Section 101.


Judge Prost dissented, writing that the majority failed to follow the Supreme Court’s Prometheus ruling by not inquiring whether the claims include an “inventive concept” and by devising its own patentable subject matter test.

The challenged patents in this case are directed to a computerized trading platform for exchanging obligations in which a trusted third party settles obligations between a first and second party so as to eliminate “settlement risk.”  The district court granted a summary judgment motion that the claims were not patent eligible because they are directed to an abstract idea.  On appeal the Federal Circuit reversed, concluding that the system, method, and media claims are directed to practical applications of an invention falling within the categories of patent eligible subject matter defined by Section 101.

The “abstract ideas” test for patent eligibility has become a serious problem because of its “abstractness,” Judge Linn observed.  He noted that several Supreme Court decisions have discussed the concept of “preemption” to elucidate the “abstract idea” exception to patent eligibility.

However, he added that Diamond v. Diehr, 450 U.S. 188 (1981), addressed claims containing a mathematical equation, and held that they only foreclosed the general use of the equation in conjunction with all of the other steps in the claimed process.  Thus, the essential concern, according to the Court, is not preemption per se, but the extent to which preemption results in the foreclosure of innovation.

With respect to implementing inventions in computer hardware or software, the court stated that the “mere implementation” on a computer of an otherwise ineligible abstract idea will not render the invention patent eligible, citing Fort Props. Inc. v. Am. Master Lease LLC, 671 F.3d 1317 (Fed. Cir. 2011).

However, Judge Linn wrote that a machine limitation can render a method patent eligible where the machine imposes a meaningful limit on the scope of the claim and where it plays a significant part in permitting the claimed method to be performed, citing SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319 (Fed. Cir. 2010).  A machine is insufficient, he added, if it functions solely as an obvious mechanism for permitting a solution to be achieved more quickly, i.e., through the utilization of a computer for performing calculations.  A claim that is drawn to a specific way of doing something with a computer is likely to be patent eligible, Judge Linn explained, whereas a claim to nothing more than the idea of doing that thing on a computer may not. He added the following:
While the use of a machine in these limitations is less substantial or limiting than the industrial uses examined in Diehr (curing rubber) or Alappat (a rasterizer), the presence of these limitations prevents us from finding it manifestly evident that the claims are patent ineligible under § 101. … In such circumstances, we must leave the question of validity to the other provisions of Title 35.

To read the Court’s opinion and the dissenting opinion, click here.

Wednesday, June 13, 2012

New gTLDs by Australian Companies

Here is my list of new gTLDs applied for by Australian companies, Universities and governments.  There were a number of Victorian Universities who applied, plus the NSW Government and the Victorian Government.  Commonwealth Bank made three applications, as did iSelect.  A number will be contested (as marked in bold) below.

  • AFL
  • AMP
  • ANZ
  • AUSPOST
  • BEST
  • BOND
  • BOOK
  • CANCERRESEARCH
  • CBA
  • CEO
  • COMMBANK
  • NETBANK
  • COURSES
  • FILM
  • GLOBALX
  • IINET
  • KRED
  • LATROBE
  • COMPARE
  • SELECT
  • ISELECT
  • CPA
  • MELBOURNE
  • MONASH
  • NAB
  • UBANK
  • PHYSIO
  • RMIT
  • SALON
  • SBS
  • TAB
  • TENNIS
  • SEEK
  • SELECT
  • SEVEN
  • STUDY
  • SYDNEY
  • WEBJET
  • WOODSIDE
  • YELLOWPAGES
There are a number of multiple applications for the one gTLD, such as ART, AUCTION, BOOK, BET, BABY, HOTEL, HOT, GROUP, GREEN, GAME, CLOUD, CLUB, AUDIO, AUTO, SECURITY, FREE, RIP, MOBILE, MUSIC, NEWS, NOW, ONLINE, PIZZA, PLAY, POKER, PROPERTY, RACING, RADIO, RESTAURANT, RUGBY, SALE, SCHOOL, SEARCH, SHOP, SITE, VIP and SUCKS.  There was one PORN application and two SEX applications (and one SEXY application).

There were two applications from New Zealand, KIWI and RIP.

Amazon made over 70 applications for words in English, and a bunch more in non-Roman text.  Google made about 100 applications, under the name Charleston Road Registry Inc..  Facebook did not make any applications.

Reveal Day



Tuesday, June 12, 2012

Tomorrow is gTLD Reveal Day


It is anticipated that 1,900 applications have been made for new gTLDs.  Information will be posted here tomorrow.

For background about the gTLD process and new gTLDs, see: B and T; and Mallesons.

What should you know for Reveal Day.  See "10 things" article. 

See also ICANN and here and WIPO LRO page.

Saturday, June 09, 2012

Here's $10 off at Shoebuy.com

Save on shoes, accessories, handbags and apparel at Shoebuy.com. We've got something for everyone and for a limited time, you can save $10 on that special something. Valid on purchase of $50 or more.

Friday, June 01, 2012

Kim Dotcom on the offensive

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10809796 


Papers state the FBI allegations "turn a blind eye to laws ... that provide a safe harbour" for businesses which work to remove any material which infringes copyright. It stated there was no law which allowed cloud storage companies to face criminal charges over the actions of users.

Does MegaUpload have a DMCA defence?

Saturday, May 26, 2012

Google Posts Data as to copyright takedown notices

Google has decided to share its insights on copyright abuse amid a loudening outcry for a crackdown against online piracy that media companies have claimed is collectively costing them billions of dollars each year. The backlash inspired a piece of get-tougher legislation SOPA, that had the backing of most major music and move studios. The proposal caused dismay among major internet companies who feared the law would stifle free speech and innovation. The bill was abandoned four months ago after fierce high-tech opposition that included a one-day blackout of popular websites such as Wikipedia and an online petition drive spearheaded by Google.

See Google Data and SMH article

Privacy Inquiries re Google

From The New York Times:
Google Privacy Inquiries Get Little Cooperation

All sorts of private Internet communications were casually scooped up as Google Street View cars photographed the world’s streets.

http://nyti.ms/Kx4aE2

Wednesday, May 23, 2012

Wrap up - current issues

John will be travelling interstate on Monday, so Carly will be taking his place for the last lecture.

This lecture will focus on current issues, using Facebook as a marketing case study.  Have a look at the following articles to start with:

IPO articles and here

marketing - 10 examples

marketing tips

facebook marketing bible

What are the risks of using social media as a marketing tool?

Wednesday, May 16, 2012

Online contracting, creating websites

e-commerce
How is contracting online different to other transactions?  
What special regulations are there / should there be to address these differences?
Consider:

Ensuring enforceability of online contracts
Consider the differences between shrink wrap, click wrap and browse wrap agreements.
Where do website terms of use fit it?  Consider some examples and the similarities / differences between them.
What is the impact of the unfair contracts legislation?


Establishing and operating websites
What do you need to be aware of (having regard to previous lectures)?
Australian Government's suggestions

Thursday, May 10, 2012

Copyright lecture

In this lecture we will focus on a number of important copyright decisions in Australia.  However, you should also be familiar with:

Copyright Act, and amending legislation relevant to the Internet - Computer Programs, Digital Agenda, 2004 amendments

Law reform

Australian cases - Kazaa (piracy), MP3s4free (piracy), Fairfax (newspaper headlines), Ice TV (compilations/databases), Telstra (computer generated compilations), iiNet (ISP liability) and TV Now

US cases - Napster, Grokster 

Recent news items - NSW police/Micro Focus, 92 year old pirate

Copyright/licensing bodies - Electronic Frontiers Australia, Creative Commons

Wednesday, May 09, 2012

Monday, May 07, 2012

How to Muddy Your Tracks on the Internet

Legal and technology researchers estimate that it would take about a month for Internet users to read the privacy policies of all the Web sites they visit in a year. So in the interest of time, here is the deal: You know that dream where you suddenly realize you’re stark naked? You’re living it whenever you open your browser.
...
“Companies like Google are creating these enormous databases using your personal information,” said Paul Hill, senior consultant with SystemExperts, a network security company in Sudbury, Mass. “They may have the best of intentions now, but who knows what they will look like 20 years from now, and by then it will be too late to take it all back.”
See NY Times

Tuesday, May 01, 2012

info graphic - The Stop Online Piracy Act (SOPA)


A Technical Examination of SOPA and PIPA 
By Spencer Belkofer. LLRX.com, April 29, 2012 
SOPA is the Stop Online Piracy Act, and PIPA is the Protect IP Act.

Friday, April 27, 2012

Copyright Loss For Optus TV


National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59 (27 April 2012)

"The two primary issues raised in the appeals can be stated shortly. The first is: When a cinematograph film (or copy) and a sound recording (or copy) were made when a television broadcast of one of the AFL or NRL matches was recorded for a subscriber, who, for the purposes of the Copyright Act 1968 (Cth) was the maker of that film, sound recording or copy? Was it Optus or the subscriber (or both of them jointly)? The primary judge’s answer to this was that the maker was the subscriber.

Ours is a different conclusion. The maker was Optus or, in the alternative, it was Optus and the subscriber. It is unnecessary for present purposes to express a definitive view as between the two. Optus could be said to be the maker in that the service it offered to, and did, supply a subscriber was to make and to make available to that person a recording of the football match he or she selected. Alternatively Optus and the subscriber could be said to be the maker for Copyright Act purposes as they acted in concert for the purpose of making a recording of the particular broadcast which the subscriber required to be made and of which he or she initiated the automated process by which copies were produced. In other words, they were jointly and severally responsible for the act of copying. That is our preferred view.

The second question is: If Optus’ act in making such a film would otherwise constitute an infringement of the copyright of AFL, NRL or Telstra, can Optus invoke what we would inaccurately, but conveniently, call the “private and domestic use” defence of s 111 of the Act? The primary judge did not have to consider this, given his answer to the first question.

Our answer is that Optus cannot either as maker alone or as a maker with a subscriber bring itself within the scope of the s 111 exception on its proper construction."

Thursday, April 26, 2012

Domain names

Discussion for this week's lecture will include:
  • what is a domain name? 
  • who ultimately controls domain names - what roles do ICANN, auDA play? 
  • what legal rights do you have in a domain name?
  • how much are domain names worth?
  • what is cybersquatting?
  • how can you resolve domain name disputes?  Please be familiar with the elements of the UDRP and the auDRP.  Are these processes preferable to court?  What are the advantages and disadvantages of each option?
  • how would you go about judging a domain name dispute under the UDRP?  Are the decisions consistent?
  • what other policies and legal issues impact on an entitlement to domain names?
  • new GTLDs

Monday, April 23, 2012

German Court case fails to settle YouTube copyright controversy

A German court has ruled that YouTube must erase seven contested videos over copyright issues. However, the decision has failed to settle the protracted copyright row raging on the Internet. Hamburg's State Court ruled on Friday that YouTube will have to take seven videos offline, including "Rivers of Babylon" by Boney M.

The verdict strengthens the position of Germany's royalty collections body GEMA which has been battling Google-owned YouTube over copyright issues for years.

The last agreement expired in 2009 and the conflicting parties have since been at loggerheads over the proper method to collect copyright fees.  However, Friday's verdict is not the landmark ruling which some had hoped would once and for all settle the contentious issue of copyright protection in the Internet.

Limited culpability
The Hamburg court decided that Internet platforms like YouTube are not directly liable for the breach of copyrights committed by users uploading protected material. However, the platform is now obliged to "deactivate immediately any illegal videos" once alerted by those holding the copyright.

Notably, the ruling does not oblige YouTube to check all content that has already been uploaded to its site – a key GEMA demand.

The judges said YouTube was not the main culprit because it does not upload or steal any content. Rather it facilitated the copyright breaches by offering and operating the online platform.

In order to prevent further copyright breaches, the judges called on YouTube to employ specific software capable of detecting songs in videos.

Business Method Patents

For tonights class, in addition to the reading listed below, the following recent Australian Patent Office decisions are relevant:

Sunday, April 22, 2012

Jail time for Facebook Photos


A New South Wales man has been jailed for six months for posting nude pictures of his former lover on Facebook, Fairfax media has reported.
In the first social networking-related conviction in Australian history, Ravshan ”Ronnie” Usmanov posted six nude photos of his ex-girlfriend on Facebook shortly after they broke up.
The photos showed his ex-girlfriend "nude in certain positions and clearly showing her breasts and genitalia."
"I put the photos up because she hurt me and it was the only thing (I had) to hurt her," Usmanov, 20, was quoted by the Sydney Morning Herald as telling the police.
According to the report, Usmanov also emailed his girlfriend after posting the pictures, saying, “Some of your photos are now on Facebook."
The woman, who cannot be identified, requested Usmanov to take the pictures down but called the police when he refused.
In 2010, a New Zealand man was sentenced to four months in jail for posting a naked photo of his ex-girlfriend on Facebook.
His act was described as one of "irresponsible drunken rage" by presiding judge, who also said, "Technology can't be used in this way. You would do incalculable damage to someone's reputation."


Source:  Yahoo website

Friday, April 20, 2012

iiNet High Court of Australia Decison - iiNet Wins

The High Court of Australia today handed down judgment in favour of iiNet in the copyright appeal, dealing with whether an ISP should be liable for copyright infringements of the ISP's customers.  Unanimous dismissal. French, Crennan and Kiefel in one judgment and separate judgment of Gummow and Hayne also dismissing appeal.

"Today the High Court dismissed an appeal by a number of film and television companies from a decision of the Full Court of the Federal Court of Australia. The High Court held that the respondent, an internet service provider, had not authorised the infringement by its customers of the appellants' copyright in commercially released films and television programs."

Summary:
http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdf

Judgment:
http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html

My commentary in The Age

Monday, April 16, 2012

e-book Price Fixing?


Last week, the United States Department of Justice and 16 U.S. States sued Apple and several publishers alleging a conspiracy to raise retail prices for e-books. 

In the Southern District of New York, the Department sued Apple, Hachette, HarperCollins, Simon & Schuster, Macmillan, and Penguin, reaching a settlement with Hachette, HarperCollins, and Simon & Schuster.  The Department’s complaint and proposed final judgment can be found here: http://www.justice.gov/atr/cases/applebooks.html
The Department’s press release and statements by Attorney General Holder and Acting Assistant Attorney General Pozen can be found here:

In the Western District of Texas, the a number of States sued Apple, Macmillan, Simon & Schuster, and Penguin. The States'  redacted complaint can be found here: https://www.oag.state.tx.us/newspubs/releases/2012/041112ebooks_complaint.pdf 

The States were led by the Texas AG and the Connecticut AG. The States did not sue HarperCollins or Hachette, but stated they had reached agreement with the two publishers on restitution and injunctive releif.  Here is the Texas AG’s press release: https://www.oag.state.tx.us/oagnews/release.php?id=4026

Monday, April 09, 2012

Class 7: Liability of intermediatories and ISPs

This class deals with liability of intermediaries. For example, is an ISP liable for the conduct of its users? Is a web hosting company liable for the content of others that it hosts? Is TripAdvisor liable for reviews of hotels posted by users? Is Google liable for the content that appears on this blog?

Should such intermediaries be liable for the actions of others?

This is a very topical class, with a number of relevant decisions from the past two weeks.  Thus, there is a lot of reading for this class.

The main reading for the class is the iiNet case:
The iiNet case is currently on appeal to the High Court of Australia.  Oral argument has been heard, and we are waiting for judgment.  It is reported that judgment will be handed down on Friday, 20 April.  Transcripts and written submissions can be found on the High Court website.

Please also read the very recent case: Australian Competition and Consumer Commission v. Google Inc. [2012] FCAFC 49 decided last week; and compare UK position summarised here.

Also, read the following:

Tuesday, April 03, 2012

Google Liable for Misleading Advertisements

The Full Court of the Federal Court of Australia today decided that Google was liable for misleading advertisements placed by advertisers.  See Australian Competition and Consumer Commission v. Google Inc. [2012] FCAFC 49.

The 3-0 judgment against Google included the following text:

"An ordinary and reasonable user would conclude from these circumstances that it was Google who was displaying the sponsored link in collocation with the sponsor's URL in response to the user's search.  Even if all these circumstances would not be apparent to ordinary and reasonable users, so that Google could not be "seen" by them to be more than a mere conduit, these circumstances show that Google is, in fact, much more than a mere conduit.  ...  Critical to this conclusion is the fact that the sponsored link is displayed on the screen in response to a user's query which is made by the entry of selected key words.  Thus, the user asks a question of Google and obtains Google's response.  Several features of the overall process indicate that Google engages in misleading conduct. ...

Google supplies its advertising customers with the ability to select keywords which are expected to be used by persons making enquiries through Google's search engine.  The ability of advertisers to select "broad match" keywords enables them to trigger sponsored links through Google's search engine based on known associations which are determined by Google's proprietary algorithm.  Although the keywords are selected by the advertiser, perhaps with input from Google, what is critical to the process is the triggering of the link by Google using its algorithms.  That is a further reason to conclude that it is Google's conduct as a principal, not merely as a conduit, which is involved in each of the four instances that form the subject matter of this appeal."

Saturday, March 31, 2012

Copyright & Theft

"THE Justice Department is building its case against Megaupload, the hugely popular file-sharing site that was indicted earlier this year on multiple counts of copyright infringement and related crimes. The company’s servers have been shut down, its assets seized and top employees arrested. And, as is usual in such cases, prosecutors and their allies in the music and movie industries have sought to invoke the language of “theft” and “stealing” to frame the prosecutions and, presumably, obtain the moral high ground. ...


The problem is that most people simply don’t buy the claim that illegally downloading a song or video from the Internet really is like stealing a car. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same."


See NY Times opinion article from U.S. law school professor.

Friday, March 30, 2012

Copyright Exceptions To Be Reviewed

Draft terms of reference for an Australian Law Reform Commission (ALRC) inquiry into the operation of copyright exceptions in the digital environment were released today for public comment.
Attorney-General Nicola Roxon said the ALRC will consider whether the exceptions in the Federal Copyright Act are adequate and appropriate in the digital environment.  The draft terms of reference reflect the fact that technology is constantly evolving and testing the boundaries of copyright law Ms Roxon said.

"In our fast changing, technologically driven world, it important to ensure our copyright laws are keeping pace with change and able to respond to future challenges.  We want to ensure this review has enough scope to look at the key areas of copyright so were calling on stakeholders to provide us with their feedback before the ALRC begins its work."

The draft terms of reference ask the ALRC to examine the adequacy and appropriateness of a broad range of exceptions in the Copyright Act, including time shifting.

The draft terms of reference also direct the ALRC to consider whether exceptions should allow the legitimate non-commercial use of copyright works for uses on the internet such as social networking.

The Government has appointed Professor Jill McKeough, University of Technology Sydney Dean of Law, to the ALRC as a Commissioner to lead the copyright inquiry.

Wednesday, March 28, 2012

Class 6 - Content Regulation

Reading for next Monday's class on Content Regulation.

This class will focus on laws and current issues relating to the regulation of content on the Internet.

Should freedom of speech on the Internet prevail over protection of the public interest? Does the public need to be protected? What is the difference between censorship and regulation?

What are the relevant public interests? Who decides?

Should there by government regulation, or reliance on technology (such as NetNanny), or parental responsibility (e.g., see Google's Family Safety Centre)?


Reading:
Extra Reading if you are interested: