"Since 1995, Sports Warehouse had used the name “Tennis Warehouse” in Australia and did not change its domain name for its online store. Sports Warehouse, for the first time in closing submissions, (while conceding that reputation in the context of s 60 was that of the mark rather than reputation on some other basis), contended that as a significant number of Australian residents visited the Tennis Warehouse website at the domain names “www.tennis-warehouse.com” or “www.tenniswarehouse.com”, by inference they came to know Sports Warehouse by that word, which did not include a TW device. While acknowledging that, once at the website, the customer would encounter the TW device with the TENNIS WAREHOUSE trade mark, counsel for Sports Warehouse submitted that the court could infer, in such circumstances, a “capacity for confusion” at which s 60 was essentially directed.
While it has been held that a domain name can in some circumstances constitute use of a trade mark (see Sports Warehouse v Fry at [146]-[156]), there was no evidence before the court to establish that, as at December 2006, the TENNIS WAREHOUSE mark had acquired a reputation through use of the domain names amongst any consumers or any significant section of the public."
See Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) [2012] FCA 81 (13 February 2012)
Is Streaming on the Internet a Broadcast?
A recent Australian Federal Court case determined whether whether the scope of the non-exclusive licence of the right to broadcast certain sound recordings granted by a copyright collection agency to radio stations included the right to play those recordings in radio programs transmitted by FM broadcast as a simulcast with transmission of the same program via the Internet.
"The service which transmits the very same radio programs at essentially the same time both to the FM transmitters and beyond and to the web stream servers and beyond is the one service. On the facts before me, the members of CRA who stream their radio programs on the Internet do so only as part of a program package which also simultaneously transmits those programs via frequency modulated radio waves to the consumer’s FM receiver. In truth, the service is but one service being a service which combines various delivery methods or platforms and which delivers the same radio program using the broadcasting services band. It falls within the exception to the exclusion set out in the Ministerial Determination.
Therefore, in my view, the service provided by the members of CRA is a broadcasting service.
That being so, the simulcast transmission of the same radio program via the FM waves and the Internet is also a “broadcast” within the current definition of that term in s 10(1) of the Copyright Act and, for that reason, is within the scope of the licence which PPCA agreed to grant to the members of CRA and which it did grant from time to time to members of CRA upon the terms and conditions set out in the Member Agreement."
See Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93 (15 February 2012)
"The service which transmits the very same radio programs at essentially the same time both to the FM transmitters and beyond and to the web stream servers and beyond is the one service. On the facts before me, the members of CRA who stream their radio programs on the Internet do so only as part of a program package which also simultaneously transmits those programs via frequency modulated radio waves to the consumer’s FM receiver. In truth, the service is but one service being a service which combines various delivery methods or platforms and which delivers the same radio program using the broadcasting services band. It falls within the exception to the exclusion set out in the Ministerial Determination.
Therefore, in my view, the service provided by the members of CRA is a broadcasting service.
That being so, the simulcast transmission of the same radio program via the FM waves and the Internet is also a “broadcast” within the current definition of that term in s 10(1) of the Copyright Act and, for that reason, is within the scope of the licence which PPCA agreed to grant to the members of CRA and which it did grant from time to time to members of CRA upon the terms and conditions set out in the Member Agreement."
See Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93 (15 February 2012)
Class Timetable
The first class is this Thursday, 1 March, in room Z308. Then, we are changing to Monday nights, so the next class will be Monday 5 March.
Please see the Blackboard announcement, and note:
1) If you are unable to complete the unit on a Monday night, you can with choose an
alternative Semester 1 unit up until Friday 9 March.
2) You can withdraw from Semester 1 units until March 23.
First Class
The first class for LWN117 for semester 1, 2012, is Thursday, 1 March 2012, at 6pm. It appears that the first class is in Z308. (The class was originally scheduled for Mondays. The first class is on Thursday. Later classes may be moved back to Mondays.)
Google Goggles
Later this year, Google is expected to start selling eyeglasses that will project information, entertainment and, this being a Google product, advertisements onto the lenses. The glasses are not being designed to be worn constantly — although Google engineers expect some users will wear them a lot — but will be more like smartphones, used when needed, with the lenses serving as a kind of see-through computer monitor. ...
Several people who have seen the glasses, but who are not allowed to speak publicly about them, said that the location information was a major feature of the glasses. Through the built-in camera on the glasses, Google will be able to stream images to its rack computers and return augmented reality information to the person wearing them. For instance, a person looking at a landmark could see detailed historical information and comments about it left by friends. ...
“In addition to privacy, it’s also going to change real-world advertising, where companies can virtually place ads over other people’s ads,” he said. “I’m really interested in seeing how the government can successfully regulate augmented reality in this sense. They are not really going to know what people are seeing behind those glasses.”
See NY Times
Several people who have seen the glasses, but who are not allowed to speak publicly about them, said that the location information was a major feature of the glasses. Through the built-in camera on the glasses, Google will be able to stream images to its rack computers and return augmented reality information to the person wearing them. For instance, a person looking at a landmark could see detailed historical information and comments about it left by friends. ...
“In addition to privacy, it’s also going to change real-world advertising, where companies can virtually place ads over other people’s ads,” he said. “I’m really interested in seeing how the government can successfully regulate augmented reality in this sense. They are not really going to know what people are seeing behind those glasses.”
See NY Times
Interview with Kim Dotcom Lawyer
Here is an interview from NZ TV with Mr Kim Dotcom's U.S. lawyer. Can the operator of a file storage system be criminally liable for copyright infringement of its users? Or is there more to this case than this?
China Blogging
A
spokesperson for the Beijing Internet Propaganda Management Office
announced in a recent press conference that Beijing aims to complete
mandatory real
name registration for microblog platforms by March 16. The Office has
also established a microblog development expert advisory group composed
of experts from Tsinghua University, China University of Political
Science and Law, the People's Daily Online's Public
Opinion Testing Center, China Labs, and the Data Center of the China
Internet (DCCI).
Chinese internet company Sina launched a real name verification function to its user registration form as of January 1, 2012. The new function compares user-submitted data, such as name and national ID card number, and if a user's information does not match comparison records the user can only browse existing posts. In order to be able to post content, users must resubmit correct information. To date, 3 mlllion new users have submitted real name information, and single day registration volume continues to grow. For existing users, Sina will offer additional functionality and privileges to users that submit real name credentials, implement a user trust ratings system, and this week will launch a verified real name ID badge. Sohu previously launched a promotional campaign, offering 20 mln Sohu Video monthly subscription cards and RMB 1 mln worth of mobile phone recharge cards to users who submit real name data early. Online real estate site Soufun offered prizes, including free vacation housing in 13 popular tourist destination cities. Users who do not register by March 16 will lose their posting and reposting privileges.
Regarding user data security, a Sina spokesperson said that users will be notified by mobile phone or other channels if someone logs into their account from a different location. If any anomalies occur, users can lock their account from their mobile phone even if someone else is logged in. A spokesperson for Sohu said that Sohu does not store any user data after authenticating the user's identity.
Source: Marbridge
Chinese internet company Sina launched a real name verification function to its user registration form as of January 1, 2012. The new function compares user-submitted data, such as name and national ID card number, and if a user's information does not match comparison records the user can only browse existing posts. In order to be able to post content, users must resubmit correct information. To date, 3 mlllion new users have submitted real name information, and single day registration volume continues to grow. For existing users, Sina will offer additional functionality and privileges to users that submit real name credentials, implement a user trust ratings system, and this week will launch a verified real name ID badge. Sohu previously launched a promotional campaign, offering 20 mln Sohu Video monthly subscription cards and RMB 1 mln worth of mobile phone recharge cards to users who submit real name data early. Online real estate site Soufun offered prizes, including free vacation housing in 13 popular tourist destination cities. Users who do not register by March 16 will lose their posting and reposting privileges.
Regarding user data security, a Sina spokesperson said that users will be notified by mobile phone or other channels if someone logs into their account from a different location. If any anomalies occur, users can lock their account from their mobile phone even if someone else is logged in. A spokesperson for Sohu said that Sohu does not store any user data after authenticating the user's identity.
Source: Marbridge
Twitter Being Sued For Defamation
Twitter is being sued for defamation by a Melbourne man, Joshua Meggitt, who was wrongly identified as the author of a “hate blog”.
See story here and SMH.
See story here and SMH.
Misleading Online Reviews
A blog entry from the NY Times: Discounting Bad Reviews
"Are reviews of products and services on the Internet believable? Probably not. In the latest case, a merchant offered a rebate in exchange for getting a customer to revise a rating, but it says that is not the way it usually does things."
"Are reviews of products and services on the Internet believable? Probably not. In the latest case, a merchant offered a rebate in exchange for getting a customer to revise a rating, but it says that is not the way it usually does things."
Advertising Financial Products on the Internet
ASIC has today released RG 234, Advertising financial products and advice services: Good practice guidance, to assist promoters in complying with their legal obligations when advertising financial products
and services. See the
media release - 14 February 2012, for further information and related material.
It applies to advertising on the Internet, via Twitter and the like. See section RG 234.115
and following.
What is interesting is that the Guidelines also apply to publishers (such as newspapers), Internet sites, and aggregators and comparison websites. See Section E and RG234.164 and following.
"While the primary responsibility for advertising material rests with the organisation placing the advertisement, the publisher may also have some responsibility for the content of an advertisement."
It applies to advertising on the Internet, via Twitter and the like. See section RG 234.115
and following.
What is interesting is that the Guidelines also apply to publishers (such as newspapers), Internet sites, and aggregators and comparison websites. See Section E and RG234.164 and following.
"While the primary responsibility for advertising material rests with the organisation placing the advertisement, the publisher may also have some responsibility for the content of an advertisement."
Online Privacy
A good comment: "The piracy of online privacy".
"Online privacy doesn’t exist. It was lost years ago. And not only was it taken, we’ve all already gotten used to it. Loss of privacy is a fundamental tradeoff at the very core of social networking. Our privacy has been taken in service of the social tools we so crave and suddenly cannot live without. If not for the piracy of privacy, Facebook wouldn’t exist. Nor would Twitter. Nor even would Gmail, Foursquare, Groupon, Zynga, etc. And yet people keep fretting about losing what’s already gone...."
"Online privacy doesn’t exist. It was lost years ago. And not only was it taken, we’ve all already gotten used to it. Loss of privacy is a fundamental tradeoff at the very core of social networking. Our privacy has been taken in service of the social tools we so crave and suddenly cannot live without. If not for the piracy of privacy, Facebook wouldn’t exist. Nor would Twitter. Nor even would Gmail, Foursquare, Groupon, Zynga, etc. And yet people keep fretting about losing what’s already gone...."
Law firm sues over bad online review about it
A Dallas law firm has filed a lawsuit seeking to learn the identity of a commenter calling himself “Ben” who posted a bad online review.
The Lenahan Law Firm claims defamation and seeks $50,000 in damages, Texas Lawyer reports. Partner Wes Black says the suit will allow the law firm to subpoena Google to learn the commenter’s identity.
Ben wrote in his comments on Google Review: "Bad experience with this firm. Don't trust the fake reviews here.” Ben also gave a bad review to an Oregon cleaning company and may have intended to post the negative review about a different law firm closer to home, the suit(PDF) says.
Black tells Texas Lawyer the Lenahan Law Firm gets most of its clients from searches, and the bad review won’t help. "The issue isn't trying to recover tons of money,” Black tells Texas Lawyer. “We just want the review down.”
See: ABA
New Google Privacy Policy
"We're getting rid of over 60 different
privacy policies across Google and replacing them with one that's a
lot shorter and easier to read. Our new policy covers multiple
products and features, reflecting our desire to create one beautifully
simple and intuitive experience across Google.
We believe this stuff matters, so please
take a few minutes to read our updated Privacy Policy and Terms of
Service
at http://www.google.com/policies. These
changes will take effect on March 1, 2012."
See story in Washington Post and CNN
Mr Kim Dotcom Arrested - No Need for SOPA?
With the recent arrest of Mr Kim Dotcom in NZ for online piracy, one wonders why new legislation such as the SOPA in the U.S. is needed.
See SMH and NZ Herald.
"The Electronic Frontier Foundation, which defends free speech and digital rights online, said in a statement that the arrests set "a terrifying precedent. If the United States can seize a Dutch citizen in New Zealand over a copyright claim, what is next?""
Is it true that the president of Activation visiting Mr Dotcom this month, before his arrest? Why has it not been reported that members of the Black Eyed Peas were in Mr Dotcom's home when he was arrested, and have attended some of the NZ court proceedings?
See SMH and NZ Herald.
"The Electronic Frontier Foundation, which defends free speech and digital rights online, said in a statement that the arrests set "a terrifying precedent. If the United States can seize a Dutch citizen in New Zealand over a copyright claim, what is next?""
Is it true that the president of Activation visiting Mr Dotcom this month, before his arrest? Why has it not been reported that members of the Black Eyed Peas were in Mr Dotcom's home when he was arrested, and have attended some of the NZ court proceedings?
Faceless Net Giants
A story in the Sydney Morning Herald: "Faceless Net Giants Writing Own Rule Books." If you upset Google (or Google Ireland -- the company that Google hides behind), they can just make you disappear.
"Australians use them more than any other websites and to many they have become essential services, oiling the wheels of life and commerce at the click of a mouse.
"Australians use them more than any other websites and to many they have become essential services, oiling the wheels of life and commerce at the click of a mouse.
But when Google or Facebook no longer wants you, it can be all but impossible to find out why, as internet entrepreneur Mark Bowyer and others have found to their cost.
Advertisement: Story continues below
Earlier this year Google banned ads from his travel website, Rusty Compass, because it said the site "poses a risk of generating invalid activity".
Apple Apps
On Christmas morning, millions of people will unwrap new iPads, iPhones and iPod Touches — and immediately start downloading games and other applications for them. It is the biggest day of the year for app sales, which can mean big money for developers.
Flurry, a mobile analytics firm, estimated that in the period from Dec. 23 to Dec. 26 last year, 240 million applications were downloaded to Apple mobile devices, or about 20 percent of the total downloads for the month.
Source: NYTimes
Flurry, a mobile analytics firm, estimated that in the period from Dec. 23 to Dec. 26 last year, 240 million applications were downloaded to Apple mobile devices, or about 20 percent of the total downloads for the month.
Source: NYTimes
Brand xxx marks dot danger
The arrival of a generic top-level domain specifically for the porn industry has worrying implications and likely costs for many well known labels.
There is more trouble for brand owners brewing in cyberspace, with fundamental changes to the domain name system being implemented. In March 2011, following successful lobbying from the adult entertainment industry, the Internet Corporation for Assigned Names and Numbers (ICANN) agreed to allow the creation of a new generic top-level domain (gTLD) specifically for the adult entertainment industry. A gTLD is represented by the letters that come after the dot in a domain name, such as .com or .net.
The new adult entertainment top-level domain is .xxx and will come online next year.
This has implications for every business because brand names could be used in domain names for adult websites. For example, someone could register the new domain name sportsgirl.xxx or boostjuice.xxx for a porn website.
Metatag Use is Not Use as a Trade Mark
"I do not accept that the use of any of CTI’s Registered Trade Marks in Green Energy’s metatags would constitute a trade mark infringement for the purposes of s 120(1). Metatags are invisible to the ordinary internet user, although their use will direct the user to (amongst other websites) Green Energy’s website. Once at the Green Energy website, then, in the ordinary course, the internet user will be made aware that the website is concerned with Green Energy’s services. It cannot, therefore, be said that the use in a metatag of CTI’s Registered Trade Marks is a use that indicates the origin of Green Energy’s services. Thus, metatag use is not use as a trade mark"
Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA 1319 (18 November 2011)
Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA 1319 (18 November 2011)
Samsung Overturns Apple Injunction in Australia
Samsung was successfully in having an interlocutory injunction overturned today in the Full Court of the Federal Court of Australia. See decision: Samsung Electronics v. Apple Inc. [2011] FCAFC 156 (30 November 2011).
The case concerned two Australian patents owned by Apple. Apple asserted that the Samsung Galaxy 10.1 Tablet infringed claims of those two patents. An injunction was granted by the trial judge to prevent Samsung launching the Galaxy 10.1 in Australia until trial. Today, Samsung was successful in having that injunction removed.
As soon as the appeal court decision was announced today, Apple asked for the decision to be suspended so that it could appeal to the High Court of Australia. Apple asked this without even reading the Court's decision. The judge today suspended the decision until 4pm Friday, in effect keeping the injunction in place until Friday. Apple now has until 4pm Friday to convince the High Court of Australia to keep the injunction in place -- a hard task.
The case concerned two Australian patents owned by Apple. Apple asserted that the Samsung Galaxy 10.1 Tablet infringed claims of those two patents. An injunction was granted by the trial judge to prevent Samsung launching the Galaxy 10.1 in Australia until trial. Today, Samsung was successful in having that injunction removed.
As soon as the appeal court decision was announced today, Apple asked for the decision to be suspended so that it could appeal to the High Court of Australia. Apple asked this without even reading the Court's decision. The judge today suspended the decision until 4pm Friday, in effect keeping the injunction in place until Friday. Apple now has until 4pm Friday to convince the High Court of Australia to keep the injunction in place -- a hard task.
Law Schools That Teach Little About Legal Practice
From the NY Times:
Law Schools That Teach Little About Legal Practice By DAVID SEGAL
Law schools have long emphasized the theoretical over the useful, leaving law firms fairly resigned to training their hires how to actually practice law.
Speedo Shuts Down Blogger and Gets Domain Name
A NSW man has been ordered to shut down several pornographic websites featuring Speedo swimwear and using the company's trademark. Speedo Holdings took Central Coast blogger Dave Evans to court claiming he had used the trademark under aliases and without the company's consent. The company claimed the websites and the use of the company's trademark as part of his domain names could damage the "valuable reputation and goodwill associated with the name and trade mark Speedo". In the Federal Court of Australia on Thursday, Justice Geoffrey Flick ordered Evans to stop operating and registering any domain name containing the name Speedo. He was also restrained from operating websites featuring any sign of the Speedo trademark. Evans, who didn't appear in court, was ordered to transfer the domain names to Speedo within 21 days.
Amazon Running Sweatshop
Amazon's online store has great prices and service, and is efficient for consumers. But someone has to pick and pack the goods ordered online. Amazon has a number of distribution centres to do this. And according to U.S. newspaper reports, Amazon is running these distribution centres as sweatshops. This is the downside of cheap prices and Internet stores.
See for example: Inside Amazon's Warehouse.
Just Google "Amazon Sweatshop Pennsylvania" and you will find numerous articles about this situation.
Free books from Amazon
"Free books, including New York Times bestsellers, for the Kindle. If you’re an Amazon Prime member.
Free shipping, free movies, free books, for $80 a year. What, exactly, is Amazon up to?
There has to be some master plan, because Amazon is spending itself silly to pull this off. Because the offer is limited to owners of Kindles — it doesn’t work if you use the Kindle service on an iPad, for instance — it is intended to sell more Kindles."
Google Changes Search Algorithm to Make Results More Timely
"Acknowledging that some searches were giving people stale results,
The new algorithm is a recognition that Google, whose dominance depends on providing the most useful results, is being increasingly challenged by services like
It is also a reflection of how people use the Web as a real-time news feed — that if, for example, you search for a baseball score, you probably want to find the score of a game being played at the moment, not last week, which is what Google often gave you."
Full story in NY Times.
Hyperlinking to articles not publication for defamation
An interesting case concerning defamation on the Internet: see the Supreme Court of Canada decision, Crookes v Newton, 2011 SCC 47.
The defendant operated a website offering commentary on various issues. An comment included hyperlinks to two other pages, both of which contained articles that the defendant conceded were defamatory.
One hyperlink was "shallow," in that it referred to a web page on which the defamatory article was one of several articles posted there.
Another was "deep," in that clicking on the link led a viewer directly to the article.
For different reasons, all judges decided that this hyperlinking was not a "publication" for Canadian defamation law.
Inteflora case - bidding on trademarks as Google keywords
The Court of Justice of the European Union ("CJEU") has delivered its ruling in the long-running Interflora v Marks & Spencer Adwords case. The CJEU decided that trade mark owners can prohibit the purchase of their trade marks as keywords on web search engines, but cannot do so if the advertisements triggered do not allow users to ascertain the origin of the goods or services referred to in such advertisements.
See Bloomberg and Search Engine Watch
Australian Google AdWords Decision - Google Wins
After an 17 month wait, Justice John Nicholas of the Federal Court of Australia decided today that the ACCC did not make out their claims against Google in the case involving sponsored links and Adwords.
The key findings were that:
The court's reasons for decision are published at http://www.austlii.edu.au/au/cases/cth/FCA/2011/1086.html
The key findings were that:
- ordinary and reasonable members of the relevant class of consumers are likely to understand that sponsored links are advertisements; and
- Google merely communicated the representations made by advertisers, without adopting or endorsing any of those representations
The court's reasons for decision are published at http://www.austlii.edu.au/au/cases/cth/FCA/2011/1086.html
Patent Case - non-patentable subject matter
Cybersource v Retail Decisions was decided on 16 August 2011. It decided that a certain Internet process was not patentable subject matter.
CyberSource is the owner by assignment of a patent, which recites a “method and system for detecting fraud in a credit card transaction between [a] consumer and a merchant over the Internet.” Claim 3 of the patent recites a process for verifying the validity of credit card transactions over the Internet.
"We are not persuaded by the appellant’s argument that the claimed method is tied to a particular machine because it “would not be necessary or possible without the Internet.” Appellant’s Br. 42. Regardless of whether “the Internet” can be viewed as a machine, it is clear that the Internet cannot perform the fraud detection steps of the claimed method. Moreover, while claim 3 describes a method of analyzing data regarding Internet credit card transactions, nothing in claim 3 requires an infringer to use the Internet to obtain that data (as opposed to obtain- ing the data from a pre-compiled database). The Internet is merely described as the source of the data. We have held that mere “[data-gathering] step[s] cannot make an otherwise nonstatutory claim statutory.”
CyberSource is the owner by assignment of a patent, which recites a “method and system for detecting fraud in a credit card transaction between [a] consumer and a merchant over the Internet.” Claim 3 of the patent recites a process for verifying the validity of credit card transactions over the Internet.
"We are not persuaded by the appellant’s argument that the claimed method is tied to a particular machine because it “would not be necessary or possible without the Internet.” Appellant’s Br. 42. Regardless of whether “the Internet” can be viewed as a machine, it is clear that the Internet cannot perform the fraud detection steps of the claimed method. Moreover, while claim 3 describes a method of analyzing data regarding Internet credit card transactions, nothing in claim 3 requires an infringer to use the Internet to obtain that data (as opposed to obtain- ing the data from a pre-compiled database). The Internet is merely described as the source of the data. We have held that mere “[data-gathering] step[s] cannot make an otherwise nonstatutory claim statutory.”
Subscribe to:
Posts (Atom)