Wednesday, October 02, 2013

Lessig v. Liberation over takedown notice

Professor Lessig has sued Australian music label Liberation in the U.S. in relation to a computer generated take down notice sent to YouTube, to take down video of Lessig giving a seminar in Asia that included music licensed exclusively to Liberation in Australia.

If this case proceeds, there are interesting jurisdictional and fair use / fair dealing points that arise.  If the use of the music was fair use in the U.S., but not fair dealing in Australia, and the video is available in Australia, one would assume that there is copyright infringement in Australia.

Brisbane Times article
The video in question
EFF press release

Friday, September 06, 2013

Google and Defamation and Jursidiction

Google Australia has a defamation case against it tossed out, on the basis that it is Google Inc. that is operating the search engine and Blogger.

See SMH

Tuesday, September 03, 2013

Informational Privacy on the Web

A Data Broker Offers a Peek Behind the Curtain
The Acxiom Corporation is to open a Web site that will allow individual consumers to see some of the information that the company has collected about them.

http://nyti.ms/17slfwv

Friday, August 30, 2013

Computer Implemented Method Patentable in Australia

RPL Central Pty Ltd v Commissioner of Patents [2013] FCA 871

Broadly, the claimed invention related to the assessment of the competency or qualifications of individuals with respect to recognised standards. It was implemented using a computer.

Claim 1 included the following steps:

(a)    a computer retrieving via the internet from a remotely-located server a plurality of assessable criteria associated with the recognised qualification standard, said criteria including one or more elements of competency, each of which is associated with one or more performance criteria;
(b)    the computer processing the plurality of assessable criteria to generate automatically a corresponding plurality of questions relating to the competency of an individual to satisfy each of the elements of competency and performance criteria associated with the recognised qualification standard;
(c)    an assessment server presenting the automatically-generated questions via the internet to a computer of an individual requiring assessment; and
(d)    receiving from the individual via their computer a series of responses to the automatically-generated questions, the responses including evidence of the individual’s skills, knowledge and experience in relation to each of the elements of competency and performance criteria, wherein at least one said response includes the individual specifying one or more files on their computer which are transferred to the assessment server.

The Federal Court of Australia today determined that this claim recited patentable subject matter.

Friday, June 14, 2013

Thredbo.com Decision

The Federal Court recently released its decision in the case brought by the owners of thredbo.com.au against thredbo.com.

The decision is: Kosciuszko Thredbo Pty Limited v ThredboNet Marketing Pty Limited [2013] FCA 563

Monday, June 10, 2013

realestate.com.au Federal Court decision

On Friday, the Federal Court of Australia handed down its decision in the realestate.com.au v. realestate1.com.au case.

The decision is [2013] FCA 539.

The case concerned a generic term, that was used as a domain name, but where significant advertising had built up recognition of the brand.  The Applicant lost on consumer protection grounds but was successful in relation to trade mark infringement.  The case shows the risks of using a dictionary term as a brand, and the importance of a trade mark registration.

"245    However that observation about the ordinary case does not really address (as neither Perram J nor Chesterman J were called upon to address) a situation where the highly descriptive nature of the second-level domain (“realestate”) makes a suffix such as “.com.au” essential to brand or name recognition. Consumers with some familiarity with realestate.com.au as a brand are likely to look beyond “realestate” and to the entire domain name in order to establish identity. A real danger of confusion again arises because in the scanning process which may occur on a search results page, some consumers will miss the indistinctive “1”. I have therefore concluded that the use of “realestate1.com.au” as part of an internet address on a search results page, constituted the use by Real Estate 1 of a mark that was deceptively similar to REA’s realestate.com.au trade marks."

Monday, June 03, 2013

Hotel Executive In Trouble over TripAdvisor reviews

A hotel PR person posted TripAdvisor reviews (mostly about restaurants) and got it serious trouble for it.  See stories here and here.

Saturday, June 01, 2013

ASX rules on Social Media

The Australian Stock Exchange has continuous disclosure rules.  See Guidance Note 8, which has guidance about social media.  See also BRW article.

Sunday, May 12, 2013

Are Online Reviews Reliable?

A recent newspaper article discusses whether online review websites, such as TripAdvisor, are reliable.

See Bad Reputation.

Saturday, May 11, 2013

U.S. Patent Decision - The Alice Case

CLS Services v. Alice Corporation was decided yesterday by the Court of Appeals for the Federal Circuit, en banc.  See Judgment.  Alice Corporation is an Australian company.  Its U.S. patent was held to be invalid as it did not claim patentable subject matter.

"Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101."

There were a number of judgments.  The footnote to one judgment states:

"No portion of any opinion issued today other than our Per Curiam Judgment garners a majority. The court is evenly split on the patent eligibility of the system claims. Although a majority of the judges on the court agree that the method claims do not recite patent eligible subject matter, no majority of those judges agrees as to the legal rationale for that conclusion. Accordingly, though much is published today discussing the proper approach to the patent eligibility inquiry, nothing said today beyond our judgment has the weight of precedent."

Friday, May 10, 2013

Copyright in the Digital Era

A recent note on copyright:

Seven Copyright Principles for the Digital Era 
By John Villasenor. Brookings Institution, February 5, 2013 

Sunday, March 10, 2013

YouTube redesign

YouTube has had a revamped look for channels in limited beta testing since early February, but it's now ready to spread the new-layout love to interested folks. Dubbed "One Channel," the design refresh places an emphasis on making a user's page look slick across different screen sizes and devices, adapting its style for the occasion -- yes, even on TVs. Along with a look that provides more visual breathing room, a wide image called Channel Art adorns the top of a page, giving the whole affair a stronger Google+ vibe. Now, channel owners can even snag a visitor's attention with a trailer that'll greet them if they aren't a subscriber. The refresh also introduces the ability to organize video playlists with custom sections. Raring to take Mountain View up on the fresh looks? Jab the second source link to get started. If you change your mind after taking the plunge, however, Google's letting users switch back to the old format for a limited time.


Why do you think that Google is doing this?

Sunday, February 24, 2013

Australian Federal Court Limits Patentability

A recent Australian Federal Court decision limits the scope of patent protection for business methods implemented by computer.  The invention in question related to securities investing and, more specifically, to construction and use of passive portfolios and indexes.

The court denied patentability, stating:

"The implementation of the method of the claimed invention by means of a computer, at the level articulated in claim 1, is no more than the modern equivalent of writing down the index on pieces of paper. On the face of the Specification, there is no patentable invention in the fact that the claimed method is implemented by means of a computer. The Specification asserts a patentable invention, not in the use of the computer, but in the particular series of steps that give rise to the generation of the index. Those steps could readily have been carried out manually. The aspect of computer implementation is nothing more than the use of a computer for a purpose for which it is suitable. That does not confer patentability.

The enquiry into what constitutes a patentable invention is still evolving. It is not to be tied to particular notions of what was understood to be a manufacture at any particular point in time. However, while new developments in technology might be seen to widen the notion of what is patentable, the modern availability of computers as a standard means of implementing arithmetic or computational processes, which could have been implemented manually in the past, does not carry with it any broadening of the concept of a patentable invention."

See Research Affiliates LLC v Commissioner of Patents [2013] FCA 71

Saturday, February 23, 2013

Google Australia does not control the Google search engine

Google Australia Pty Ltd does not like being sued in Australia.  In a recent Australian lawsuit, Google said:

  • Google Australia is a wholly owned subsidiary of Google International LLC and Google Inc is the ultimate holding company 
  • Google Australia is not authorised to, and has no ability to, control or direct the conduct of Google Inc and is not responsible for the day-to-day operations of Google Inc 
  • Google Inc owns and operates the domains google.com.au and google.com. The search engines at the domains mentioned are exclusively provided by, operated by, and controlled by Google Inc 
  • Google Australia does not have any ability to control or direct action in respect of blocking URLs from google.com.au

The Australian court found: "There is no reasonable prospect of Mr Rana proving that Google Australia owns the domains in question, or that it has the ability to control or direct the conduct of Google Inc."  Thus, the claims against Google Australia were dismissed.

The Court also stated:
"In short, whether or not a search engine could be considered a publisher of defamatory material is not settled in Australia, and accordingly, it would not be appropriate to refuse to give leave to serve the proceedings and on that basis effectively dismiss Mr Rana’s claim against Google Inc: A v Google New Zealand Ltd"

See Rana v Google Australia Pty Ltd [2013] FCA 60 

Friday, February 22, 2013

IP Theft

"Our message is quite clear: the protection of intellectual property and trade secrets is critical to all intellectual property rights holders, whether they be from the United States or whether they be from Chinese companies or other companies around the world,'' Robert Hormats, the under secretary of state for economic growth, energy and the environment, said.

Though China is regarded as the most aggressive actor, Mr Hormats said other countries are guilty as well. He cited Russia and India as two countries active in the theft of intellectual property.

See SMH

Monday, February 18, 2013

Social Networks and Right of Publicity

From a Kenyon & Kenyon newsletter looking at legal trends for 2013:

An important “Right of Publicity” issue for 2013 is the use by social networks of their members' names and/or likenesses in advertising. Many social networks have broad Terms of Service which purport to allow them to exploit any content that a member posts on the networks' websites. Social networks take the position that these service terms permit them to use aspects of their members’ identities in advertisements appearing within the social networks. As social networks grow and compete for advertiser dollars, they will naturally want to allow advertisers to create the most effective ads possible. Studies have shown the persuasive potential of an online connection's recommendations (due to the apparent lack of bias), and therefore many advertisers are likely to request advertising that uses the identities of a social network's users.

Saturday, February 16, 2013

Internet Simulcasting Decision

The Australian Federal Court recently decided a lawsuit involving radio stations simulcasting their broadcasts via the Internet.

"A broadcasting service is the delivery, in a particular manner, of a radio program, consisting of matter intended to entertain, educate or inform. Thus the delivery of the radio program by transmission from a terrestrial transmitter is a different broadcasting service from the delivery of the same radio program using the internet."

See Decision Phonographic Performance Company of Australia Limited v Commercial Radio Australia Limited [2013] FCAFC 11
See also Australian Copyright Council alert

Wednesday, February 13, 2013

CLS Bank v Alice case to be heard en banc

From a Kenyon & Kenyon newsletter:

Patent-eligibility of inventions implemented by computers: CLS Bank v. Alice Corp
The district court had held that the invention, which related to methods and systems for exchanging financial obligations between parties, was an abstract idea—ineligible for patent protection under 35 U.S.C. § 101. A Federal Circuit panel disagreed, holding that the claimed invention complies with § 101 of the patent code. En banc, the Federal Circuit will address two issues:
I. 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?
II. 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?
Given the large number of software patents that issue each year, this decision could significantly impact numerous litigations, licensing negotiations, and prosecution practices.

Wednesday, February 06, 2013

Google not responsible for contents of advertisements

The High Court of Australia decided today that Google is not responsible for the content of advertisements placed via its AdWords program.

A key reason was the following at [69]:

That the display of sponsored links (together with organic search results) can be described as Google's response to a user's request for information does not render Google the maker, author, creator or originator of the information in a sponsored link. The technology which lies behind the display of a sponsored link merely assembles information provided by others for the purpose of displaying advertisements directed to users of the Google search engine in their capacity as consumers of products and services. In this sense, Google is not relevantly different from other intermediaries, such as newspaper publishers (whether in print or online) or broadcasters (whether radio, television or online), who publish, display or broadcast the advertisements of others.

See:
Court Decision, Google Inc v Australian Competition and Consumer Commission [2013] HCA 1
SMH
Technology Spectator
KWM Bulletin

Sunday, February 03, 2013

Privacy for Mobile Apps

From The New York Times:
F.T.C. Suggests Guidelines on Privacy for Mobile Apps

The Federal Trade Commission said the mobile industry should include a do-not-track feature in software and apps and take other steps to safeguard personal information.

http://nyti.ms/X0xWcG

Friday, February 01, 2013

Too Many Lawyers

Law Schools’ Applications Fall as Costs Rise and Jobs Are Cut

Applications are headed for a 30-year low, reflecting increased concern over soaring tuition, crushing student debt and diminishing prospects of lucrative employment upon graduation.

http://nyti.ms/14xHPnF

Sunday, January 27, 2013

Lawsuit Against Google For AutoComplete

An Australian doctor is suing Google for regarding its auto-complete function, that suggests the word "bankrupt" when his name is entered in the search box.
See Full Story