Senator Conroy criticises ongoing iiNet defence, breaches separation of powers
31 March 2009Senator Stephen Conroy, Minister for Broadband, Communications and the Digital Economy, has issued a stinging attack on iiNet’s position in Roadshow Films Pty Ltd & Ors v iiNet Ltd. Speaking at the CommsDay summit in Sydney yesterday, Senator Conroy described iiNet’s defence as something which ‘belongs in a Yes Minister episode’ — ironic, given that Conroy is himself the spitting image of Jim Hacker MP (case exemplar: ‘but Tony, publishing the blacklist would defeat the purpose of having a blacklist!’). Conroy opined: Read more »
The secret of drafting legal documents
12 February 2009How do we interpret a formal commercial agreement if it is ambiguous and we have reason to believe that its draftsman did not have a deep understanding of the relevant law? I think that is what this case is about.
The secret of drafting legal documents was best described by Nicolas Boileau, who was not only a literary critic but a qualified lawyer: “Ce que l’on conçoit bien s’énonce clairement et les mots pour le dire arrivent aisément”. What one conceives well can be stated with clarity and the words to say it come easily. We should all have that framed and displayed on our desks. But too often the opposite precept is followed. Bits of legal boilerplate are bolted together so that it is the words that are allowed to shape the concept instead of the other way round. In that regard the invention of the word processor has worked wonders. Sometimes, I fear, it has dispensed with the ‘concept’ altogether. Misfortune not infrequently follows.
Those who draft intellectual property licences may learn something from the misfortune that has befallen the parties to this case. They have entered into a licence agreement that contains a crucial phrase which is exceedingly hard to interpret. I have changed my mind several times about its meaning – it is a veritable Necker cube of licence agreements. The result is business uncertainty and costly litigation.
Wise and learned Queen's Counsel
12 February 2009[1] When I was a young solicitor, a wise and learned Queen’s Counsel gave me this sound advice, ‘If you have had a look at the law and the result does not make common sense, then go and have another look at the law’. I believe that he in turn had received that advice from Sir George Ligertwood. The issues in this case are testimony to the wisdom of that advice and my failure to heed it earlier in these appeals.
[2] Ever since … I answered the preliminary questions in these appeals, I have been troubled that the answers did not all accord with common sense and, more importantly, with the intent of the definition of ‘capital value’ in s 5(1) of the Valuation of Land Act 1971. The manner in which this appeal has been heard has provided an opportunity to consider the issues afresh. That reconsideration has disclosed that most of my answers were wrong. I take this opportunity to correct them.
UK internet disconnection scheme unlikely to proceed; file-sharers, ISPs rejoice
28 January 2009According to an interview in The Times with David Lammy MP, the United Kingdom government is retreating from an earlier plan to sever the internet connection of those who repeatedly share or access copyright materials on P2P networks. Instead, rumour has it that the government is considering a download levy — perhaps similar to the one recently adopted in the Isle of Mann — to be administered by a new ‘rights agency’. Little is known at this stage, but this sounds like a commonsense result and potentially a positive development for ISPs, artists and consumers:
Speaking ahead of the publication of a report on the future of Britain’s digital industries, Mr Lammy said that there were very complex legal issues wrapped up in enforced disconnection. He added: “I’m not sure it’s actually going to be possible.” …
The ISPs believe that new business models and greater public education will help to solve the problem. They oppose any solution that involves new regulatory burdens being imposed on them. The Government, with the support of the music industry, favours a co-regulatory resolution, under which both parties agree to a code of conduct which is backed up by a regulator, such as Ofcom.
Mr Lammy, who has begun a big consultation entitled Developing a Copyright Agenda for the 21st Century, said that there was a big difference between organised counterfeiting gangs and “younger people not quite buying into the system”. He said: “We can’t have a system where we’re talking about arresting teenagers in their bedrooms. People can rent a room in an hotel and leave with a bar of soap — there’s a big difference between leaving with a bar of soap and leaving with the television.”
He said he hoped the memorandum of understanding would mean that the Government did not have to apply “the heavy hand of legislation”. Read more »
A singular merit
28 January 2009It has the merit of being short. It has no other. Jonathan Parker J considerably understated the position, when he said ‘regrettably, the drafting of s 213 leaves much to be desired’ … It is not just a question of drafting (though words and phrases such as ‘commonplace’, ‘dependent’, ‘aspect of shape or configuration of part of an article’ and ‘design field in question’ are full of uncertainty in themselves and pose near impossible factual questions). The problem is deeper: neither the language used nor the context of the legislation give any clear idea what was intended. Time and time again one struggles but fails to ascertain a precise meaning, a meaning which men of business can reasonably use to guide their conduct. The amount of textbook writing and conjecture as to the meaning is a testament to its obscurity. … The absence of any clear policy, as to where the line of compromise was intended to run, means that brightline rules cannot be deduced.
Internet censorship and the politics of control
14 January 2009Harry Lewis, professor of computer science at Harvard University, has authored an interesting opinion piece on the current state of internet censorship. Broadly, Lewis identifies three sources of censorhip:
- State censorship: public agents filter bits for state purposes as they cross national borders (see, eg, the Great Firewall of China, pro-royalist censorship in Thailand, religious censorship in Saudi Arabia, recent unsuccessful attempts in Myanmar, and so on); this form of censorship is relatively easy to identify, but it may extend more broadly — for example, the enforcement abroad of judgments obtained under a foreign state’s defamation laws (Dow Jones v Gutnick an obvious example). Chalk it up to an ongoing love–hate relationship between nation states and the unfiltered internet.
- Gatekeeper censorship: Lewis identifies a growing class of content gatekeeps — search engines, popular content-sharing portals (such as YouTube and Facebook) and other large repositories of information (such as Wikipedia — though the wiki model, some have argued, is inherently immune to overt censorship). Google, for example, can ban pages from its index and decide which content is top-ranked in search results (and therefore, for practical purposes, which content is actually read). I could not have practicably discovered the above links on China, Myanmar, Thailand and Saudi Arabia without Google’s blessing. This process is opaque and non-jusiciable. YouTube and Yahoo have faced allegations of censorship for removing controversial political material under the vague mantle of ‘inappropriate content’. Lewis is, at least to some extent, rightly troubled by the fact that we are ‘relying almost exclusively on private companies to help us find the truth, when we cannot know what version of the truth they are showing us’.
- Copyright censorship: copyright law increasingly operates as an instrument of censorship — a blunt weapon, in Lewis’ view — by allowing private parties to object to material critical of them. The DMCA takedown regime (and its equivalents abroad) are biased in favour of censors in the sense that content hosts have a strong incentive to comply, whereupon the onus rests on the victim of censorship to rebut the takedown notice. A further factor that contributes to this imbalance is that the copyright owner will often be a large corporation enjoying the advantages of a ‘repeat player’ in copyright litigation over content author ‘one-shotters’.
These problems are far from unique. Nor, as might be assumed, are they confined to Muslim, communist or non-democratic states — just look at the ongoing debate concerning state internet censorship in Australia! (The fact that this is even being seriously considered is troubling enough, let alone the prospect that it might actually be implemented.) Lewis presents a cogent summary of the major issues with characteristic eloquence, drawing on numerous examples Read more »
Largest ever securities fraud rocks Indian outsourcing goliath
13 January 2009This week’s high-tech crime is a new twist on an old favourite: securities fraud. It recently emerged that one of India’s largest outsourcing firms, Satyam Computer, had ‘overestimated’ its cash reserves and asset values by around 50 billion rupees (AUD $1.38bn). According to the company founder and chairman, this was ‘purely on account of inflated profit over a period of several years’. The fraud came to light when a recent asset acquisition fell through, forcing the company to acknowledge the ‘attempt to fill fictitious assets with real ones.’ According to a taped confession to Indian police by the chief financial officer:
Srinivas said he suspected that something was wrong when the company was late with bills, but Satyam’s chairman and managing director forbade him from using fixed deposits to pay them. He was told to “manage” the bills with operational cash instead, he said. That situation occurred continuously for the past five or six years, he said. …
Srinivas said he believed the company’s fixed deposits were “unreal” and “managed” and that they were a result of an “understanding” between management and the “audit section.”
Price Waterhouse, the Indian division of PricewaterhouseCoopers, was the external auditor for Satyam. The firm has come under fire since the Satyam fraud came to light: India’s accounting board is investigating Price Waterhouse’s work on Satyam, and investors in the computer company are considering lawsuits against the auditor.
Read more »
Mobile phone spam targeted by ACMA
13 January 2009The quantity of mobile phone spam never ceases to amaze me. Considering that the medium isn’t free like email, conversion rates must be particularly high given the number of commercial text messages, SMS bait schemes and pre-recorded VoIP calls that seem to be plaguing Australian mobile networks.
Now it looks as if the Australian Communications and Media Authority (ACMA) is finally doing something about it, today announcing that it has commenced proceedings under the Spam Act 2003 (Cth) (Spam Act) against three Australian companies who used unsolicited text messages to promote online dating services. When a hapless (or dateless) victim replied, they were charged up to $5 per message — presumably with an unsubscribe policy worse than the United States army. Interestingly, the complaint also alleges the criminal charge that the respondents obtained a financial advantage by deception, in the form of paid signups to the online dating sites procured by fake dating website profiles. By virtue of the deception, ACMA also alleges a contravention of the Trade Practices Act 1974 (Cth) (TPA).
The case is noteworthy for at least three reasons. First, if successsful, it would represent ACMA’s largest (but not, as has been reported, its first) prosecution for spam text messages (which fall within the definition of ‘electronic message’ in s 5 of the Act, which includes messages sent ‘to an electronic address in connection with … a telephone account’). Second, it shows how the Spam Act and Trade Practices Act can work together to enjoin misleading scams propagated by electronic means. Third, some serious penalties are likely to flow — given that the penalties are $1.1m per day per contravention, perhaps even higher than those ordered by Nicholson J against Clarity1 Pty Ltd in 2006 (AUD $4.5m). Of course, the significance of the action can easily be overstated — remember that the vast majority of mobile phone spammers are (a) not incorporated entities with convenient bundles of ASIC reports in their name; and (b) based overseas, well beyond the reach of ACMA’s penalty notices and the Spam Act. Read more »
Persuasive reasoning
07 January 2009Perhaps not unsurprisingly, I find my own reasoning in Arundell quite persuasive and am comforted that other members of the Court agree that the decision was correct.
Film studios enjoyed record profits during 2008
6 January 2009According to The Hollywood Reporter, film studios have posted record earnings for calendar year 2008. Around 1.36 billion cinema tickets were sold in the United States during 2008, compared to 1.4 billion tickets in 2007. Ticket prices rose an average of 4.7 per cent, resulting in a 2 per cent increase in overall net profits. Ars Technica has the details:
Despite the MPAA’s continuing battle against film pirates and even a French group’s warning that piracy could kill the industry, domestic box offices are doing better than ever. Both blockbusters and not-so-blockbusters propelled record-setting revenues to an estimated $9.78 billion in 2008, with ticket price increases and films from Warner Bros, Paramount, and Sony drawing captivated audiences. …
Warner Bros. topped the list of successful studios this year with The Dark Knight, which collected $531 million and became the second highest-grossing theatrical release in history. … Knocked from its first place throne in 2007 to second place this year was Paramount, grossing $1.6 billion and garnering a 16.4 percent market share. The summer release of Iron Man was Paramount’s most successful for the year, collecting $318.3 million. … Sony took third place among studios, bringing in $1.28 billion and claiming a 13.1 percent market share. Hancock was Sony’s leading star with $228 million at the box office. Read more »
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