Archive for the 'copyright' Category

UK Cabinet Office releases Open Standards Principles

UK Cabinet Office releases Open Standards Principles

Following on from the earlier standards consultation process, the UK Government has now released open standards principles.  I have had a quick flick through and am still coming to terms with them.  On the plus side they say all the right things, and they seem to have rejected RAND/FRAND/RANDZ etc licensing requirements in their definition of a standard – “royalty free basis that is compatible with both open source and proprietary licensed solutions.  These rights should be irrevocable unless there is a breach of licence conditions.” which is good.

For my views on open standards in Government see the paper I prepared for Linux Australia.

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Megaupload turning farcical

Megaupload turning farcical

According to the NZ Herald, Megaupload was never served with process:

United States district court judge Liam O’Grady said he didn’t know if “we are ever going to have a trial in this matter” after being told Dotcom’s file-sharing company had never been formally served with criminal papers by the US.

MegaUpload: Some IP is more equal than others

MegaUpload: Some IP is more equal than others

Last week, the FBI raided and shut down MegaUpload, a site which allowed people to share their files.  Apparently, no one has so far bothered to think of the millions of users of MegaUpload whose data is now inaccessible on the MegaUpload servers.  Moreover, MegaUpload’s funds have been frozen, so it can’t pay to continue to house the data that has been uploaded to it.   Apparently it will start getting deleted later this week.

Imagine a scenario where the Feds raid a warehouse, which is alleged to hold stolen property belonging to some media magnate.  No one disputes that the warehouse also holds other people’s property.  The Feds seize the building and ask what should be done with it.  “Raze it, destroy it all” – so they do, everything, including the property of innocent third parties.

In those circumstances, could anyone seriously argue that the Feds were standing up for “property” in the abstract?  Similarly here, how can an issue of principle be argued when the copyright works of so many innocent people have been sacrificed – now by lack of access, later by destruction?

SOPA Stupidity

I have long felt that the copyright industry are their own worst enemy, at least in relation to litigation.  Instead of treating with Napster to find some accommodation, they destroyed it.  What happened as a result? Decentralised peer to peer, that’s what. Instead of having hubs as in Napster that they might negotiate with, they eliminated that point of control from the system.  Ditto subsequent litigation.  Each time they have eliminated options for themselves to be able to negotiate terms with an aggregator.  This is probably why they are so keen to make ISPs liable for their customer’s infringements.  Of course whatever ISPs do, customers will route around that as well.

At every stage, the industry has simply evolved a better infringer.  SOPA, should it be passed, will be no different.  Other countries or private ventures will set up their own DNS to route around those controlled by the US.

iiNet High Court Appeal (iiNet to win), Carrier Bravery

iiNet High Court Appeal (iiNet to win), Carrier Bravery

The High Court is set to hear the iiNet appeal at the end of this week.  Stan Beer at iTWire reports that the foreign studios pushing the appeal are likely to go down 80-20, and that this is because the foreign studios didn’t offer to pay iiNet to investigate the infringements.

I think that the foreign studios are likely to lose and it’s probably 80% (maybe a little less – as a rule of thumb, if you are entirely certain of the strength of a case, you would rate its success rate at around 70% – there are no 100% cases).   However, it’s not because the foreign movie studios did anything wrong in setting up the initial action (offering to pay for iiNet to investigate infringements would not change whether or not iiNet was authorizing as the purported infringement predates the investigation).

Rather, it’s because their authorization argument is simply a poor argument.   A calm reading of the authorities finds it without support. The Full Court decision and cases like Jain and Metro on George are flawed basically because they have focussed overly on whether the alleged authorizer had power to control.  However, it is well established in the cases that the power to control is not sufficient for authorization.  That control is only relevant in the context of the relationship between the alleged authorizer and the primary infringer – the primary infringer must be able to draw some inference from the failure to exercise control.  In the iiNet case, the primary infringer is not able to draw any conclusion from the absence of action by iiNet.  It is not possible for iiNet’s inaction to play any causal role in the infringer’s actions/decision making.  For this reason iiNet cannot possibly be authorizing them.  Cowdroy’s decision at first instance is basically right. [See here and here and my as yet unpublished paper on the topic]

It is for this reason that the recent announcement by the Comms Alliance (see SMH report here) seems to be brave.  The announcement proposes that ISPs will give notices to their users over a 12 month period warning them of infringements.   So why is this an extremely courageous thing to do?  (And why should people like FoxTel be overjoyed, rather than annoyed as in the SMH report?).  Simple.  At the moment, an infringing user cannot form any opinion one way or another about their carrier’s inaction when the user infringes copyright.  What happens when a carrier establishes a practice of sending out notices?  Well, there are now grounds to argue that inaction is “sanction, approval or countenance”.   They will say the user, since they didn’t get any notice when they should have, believed that the carrier thought it was all right for them to infringe.  Hey presto authorization!  Establishing a practice of taking any action against users alleged to be infringing completes the foreign media companies’ bootstrap argument for them.  While the proposal does not include sanctions by the carrier, authorization by inaction will become a possible argument and it will be a slippery slope from there.

Notable is the absence of stories in the paper claiming how many industries have been eliminated by copyright infringement.  These always mysteriously come out immediately before notable court events related to copyright infringement.   There are still a few days left though I suppose.

CBS Songs v Amstrad

CBS Songs v Amstrad

“Without the facilities provided by the electronic equipment industry, the entertainment industry could not provide entertainment in the home, and could not, for example, maintain orchestras which fill the air with 20th century cacophony or make gratifying profit from a recording of a group without a voice singing a song without a tune.”

per Lord Templeman in CBS Songs Limited v Amstrad [1986] FSR 159 delivering the unanimous judgment of their Lordships.

Something Important Happening in iiNet Case

Something Important Happening in iiNet Case

There’s something important going to happen in the iiNet case in the near future.  I don’t know exactly what.  I’m simply noting that whenever something has happened in the past it’s been accompanied by an anti-piracy campaign.  The campaign has apparently begun with this puff piece in the Australian, complete with a survey of people saying they’d stop infringing if their ISP asked them to.

We should therefore expect to see something on iiNet soon as well.


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