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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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.

A number of news agencies are reporting that Daniel Goncalves, a 25 year-old law firm technician, is being prosecuted for the ‘theft’ of domain name P2P.com:

Attorney Paul Keating told DNN that most cases of domain theft recovery that he has dealt with have been complicated at best. The real problem stems from the fact that domain names aren’t considered property. “The laws do not specifically identify domains as property. That has been the subject of various court decisions. Not all courts have issued consistent decisions. For example, bankruptcy courts have no difficulty treating domains as property. The IRS treats domains as a form of intellectual property and allows amortization along the lines of a trademark though over a shorter period,” Keating said. Further complications come in to play when we look at the rulings in different states. “California is believed to treat them as property after the Sex.com case but that was a federal decision interpreting California law. The Eastern District of Virginia (where the Verisign registry is headquartered) clearly holds domains to be the subject of a license and thus not property. I have been involved in various state-level cases seeking recovery of stolen names or trying to specifically enforce a domain purchase agreement in California and the courts have always honored the claim.”  Read more »

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According to The Age, a fellow University of Melbourne alumnus has been convicted of three counts of commercial copyright infringement and fined $20 000 for running a duplication lab in (wait for it) his mother’s basement:

Jeffrey Lim, 28, converted the ground floor of his parents’ Doncaster home into a work office that held six hard drives, a computer flat screen, three printers, three DVD burners, three computer towers, four scanners and various printer cartridges.

Hmm, sounds like my living room, sans the printers. Lim apparently sold various console games for $4 each using an online mail order website. Ms Tickey for the Crown relied on a tipoff from a PwC investigator and evidence from a police raid of the premises:

The man, who deposited $714 in to Lim’s account, later found that none of the 138 Playstation2 games he received displayed any genuine features.

Gosh, how unexpected! $5 games turn out not to be originals. Unsurprisingly, Lim pleaded guilty. Mr Simpson for the defence argued in mitigation that the piracy business emerged after ‘repeated but failed attempts’ to gain employment in the computer industry. Guess a Melbourne BSc isn’t what it used to be.

Senator 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 »

According 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 »

According 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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In a move as bold as it is legally questionable, Superfone, a Russian mobile advertising company, has applied for a trade mark in respect of the characters ‘;-)’ (a winking emoticon). According to the certificate of grant, the registration applies to classes 35, 38 and 41. It’s unclear whether it extends to any territories beyond the Russian Federation.

Here’s what purports to be a copy of the application:

“I want to highlight that this is only directed at corporations, companies that are trying to make a profit without the permission of the trademark holder,” he said in comments to NTV.

Companies will be sent legal warnings if they use the symbol without his permission, he said.

“Legal use will be possible after buying an annual licence from us,” he was quoted by Kommersant as saying. “It won’t cost that much - tens of thousands of dollars.”  Read more »

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