With all the fuss over the iiNet decision today, it might be easy to overlook another interesting copyright judgment that was handed down just a few metres away.

In Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29, the owner of copyright in the children’s song ‘Kookaburra Sits in the Old Gum Tree’ successfully sued the Australian band Men at Work for infringing copyright in the musical work by reproducing the flute riff in its hit single, ‘Down Under’, which has become a kind of unofficial anthem for many Australians. Kind of ironic that the national spirit infringes copyright.

Update:The judgment has been released — more analysis coming soon.

Justice Cowdroy of the Federal Court of Australia has just handed down judgment in Roadshow Films Pty Ltd v iiNet Ltd [2010] FCA 24 (iiNet Case), finding in favour of the respondent. As you’re probably aware, the iiNet Case centres on allegations of copyright infringement in connection with unauthorised downloads of films by iiNet’s subscribers using the BitTorrent protocol. The decision confirms the safe-harbours enjoyed by internet intermediaries that prevent them from having to police internet content and limits their responsibility for users’ conduct. Some huge ramifications for Australian service providers were avoided today. From his Honour’s summary reasons:

“iiNet is not responsible if an iiNet user uses [the BitTorrent] system to bring about copyright infringement … the law recognises no positive obligation on any person to protect the copyright of another”

I’ll post a more detailed analysis of the judgment once I’ve had time to digest it fully. For now, the essential points from his Honour’s reading of the summary (as liveblogged and twittered from Courtroom 18C) seem to be as follows:  Read more »

Some interesting comments from Michael Geist concerning the now-infamous Anti-Counterfeiting Trade Agreement (ACTA), which is being negotiated in secret by representatives of most developed countries. This piece considers the extent to which states party to ACTA would be required to amend their domestic laws:

most [representatives] have sought to dampen fears by implausibly claiming that ACTA will not result in any domestic changes in their own country. With that in mind, we get:

• the European Union stating “ACTA will not go further than the current EU regime for enforcement of IPRs”
• the USTR maintaining that ACTA will not rewrite US law
• Australia’s DFAT confirming they do not expect to see major domestic changes to Australian law as a result of the ACTA
• New Zealand stating “ACTA will not change existing standards”
• Canadian Industry Minister Tony Clement assuring the House of Commons that ACTA will be subservient to domestic rules

Of course, if all of this is true, skeptics might reasonably ask why ACTA is needed at all. The truth is that ACTA will require changes in many countries that ratify the agreement. The EU Commissioner-designate for the Internal Market, Michel Barnier, recently acknowledged precisely that during hearings in Brussels. Meanwhile, US lobby groups have stated that they view ACTA as a mechanism to pressure Canada into new copyright reforms.  Read more »

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Incredibly, despite widespread public opposition, reasoned technical and policy arguments, and international condemnation by the Electronic Frontiers Foundation and others, the Australian government looks set to proceed with its misguided plan to censor prohibited internet content. In December, the government released details of how the censorship (euphemism of choice: ‘filtering’) scheme will work. It’s not pretty, but there are a couple of consolations tucked away in this announcement:

The Government will introduce legislative amendments to the Broadcasting Services Act to require all ISPs to block RC-rated material hosted on overseas servers.

This is good news for industry (given that there’s to be a filter at all). Because the scheme will be implemented by way of legislative change, ISPs will probably be able to rely on ‘compliance with law’ clauses in customer contracts to restrict their services, and also save face in comparison to a self-regulated industry scheme. This is also good news for democracy: subjecting the bill to proper parliamentary scrutiny is appropriate for a measure of this magnitude (it would arguably be improper — and would probably breach convention — to enact the measure through delegated legislation), making it more likely that the inefficacy and fundamental problems with this policy will be seen and corrected. Of course, given the ALP’s numbers in the Senate and House of Representatives, this may be of purely symbolic value.  Read more »

The Australian Internet Industry Association (IIA) has invited internet service providers to attend a briefing on their copyright liability following the conclusion of oral argument in the Village Roadshow v iiNet case — judgment in which is expected early next year.

The briefing is designed to answer an interim question raised by the iiNet litigation: what should ISPs do between now and the final finding on liability? Doing nothing risks copycat legal action in the event that the rights-holders succeed. Changing infringement policies now looks bad and risks being bound by a higher standard than would be required in the event that iINet prevails. Further, the costs of doing something — monitoring customers, enforcing a repeat infringer policy, responding to take-down notices, and so on — should not be underestimated. Hopefully the IIA can offer some practical guidance to ISPs — particularly the smaller operators, who are undoubtedly troubled by the costly action iiNet has been forced to defend.

It seems that the Australian government is finally considering the introduction of a restricted classification (R18+) for computer games. Last week, the Attorney–General’s department released a discussion paper calling for submissions on whether the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (Act) should be amended to permit the Office of Film and Literature Classification to rate a computer game as ‘restricted’, meaning that it is ‘unsuitable for those under 18’ and ‘may offend some sections of the adult community’.

Currently, the Act requires that any computer game unsuitable for a minor to see must be classified ‘Refused Classification’ (RC), which prevents it from being sold, hired, exhibited, displayed, demonstrated or advertised in Australia. We saw last year that this affected relatively mainstream titles, such as Fallout 3 (which originally encouraged in-game morphine use, and simulated effects of addiction) and Grand Theft Auto IV (which featured prostitution and realistic depictions of violence), ultimately forcing the developers to censor their worldwide release versions.

The current position is bad for numerous reasons. Most importantly, it doesn’t prevent any demonstrable harm to vulnerable persons in our community (notably children):  Read more »

These somewhat didactic — but on the whole reasonable — ‘order preparation guidelines’ were recently issued by Judge Robert Kressel of the United States District Court to solicitors responsible for preparing draft orders in bankruptcy proceedings. Given the ardency with which most lawyers defend their grammatical and syntactic convictions, the controversy sparked by the practice note is unsurprising.

The guidelines range from the infantile:

Guideline No 17 — Its and It’s
Please use the possessive noun “its” and the contraction “it’s” correctly.

…to the highly idiosyncratic:

Guideline No 3 — The Date
Please put a place for the date on the left side below the text. Do not put a month or year, simply put the word “Dated:” I use an electronic stamp to insert the date, so putting any part of the date is simply an inconvenience and an interference. The traditional line used to put the date is also unnecessary.  Read more »

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An inspiring, if somewhat zealously expressed, thought for the day from Wired magazine’s Kevin Kelly:

Three thousand years from now, when keen minds review the past, I believe that our ancient time, here at the cusp of the third millennium, will be seen as another such era. In the years roughly coincidental with the Netscape IPO, humans began animating inert objects with tiny slivers of intelligence, connecting them into a global field, and linking their own minds into a single thing. This will be recognized as the largest, most complex, and most surprising event on the planet. Weaving nerves out of glass and radio waves, our species began wiring up all regions, all processes, all facts and notions into a grand network. From this embryonic neural net was born a collaborative interface for our civilization, a sensing, cognitive device with power that exceeded any previous invention. The Machine provided a new way of thinking (perfect search, total recall) and a new mind for an old species. It was the Beginning.

Contrast this antidote to fanatical techno-pessimism with Nicholas Carr’s equally cynical response:

… if there’s a higher consciousness to be found, then by all means let’s get elevated. My problem is this: When we view the Web in religious terms, when we imbue it with our personal yearning for transcendence, we can no longer see it objectively. By necessity, we have to look at the Internet as a moral force, not as a simple collection of inanimate hardware and software. No decent person wants to worship an amoral conglomeration of technology.  Read more »

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A report produced by the US–China Economic and Security Review Commission suggests that malicious attacks on United States military computer systems increased by 20 per cent in 2008, a figure that is projected to grow by 60 per cent in 2009. Experts attributed much of the increase to attacks originating in China:

“A large body of both circumstantial and forensic evidence strongly indicates Chinese state involvement in such activities,” the commission said in its 367-page report to Congress.

“China’s peacetime computer exploitation efforts are primarily focused on intelligence collection against US targets and Chinese dissident groups abroad.”

“China is changing the way that espionage is being done,” said Carolyn Bartholomew, who chaired the commission.

The report offers an alarming, though perhaps premature, conclusion:

China is likely using its maturing computer network exploitation capability to support intelligence collection against the US Government and industry by conducting a long term, sophisticated, computer network exploitation campaign. The problem is characterized by disciplined, standardized operations, sophisticated techniques, access to high-end software development resources, a deep knowledge of the targeted networks, and an ability to sustain activities inside targeted networks, sometimes over a period of months.  Read more »

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