Posts Tagged 'copyright'

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.

HCA downs Copyright-as-Property Case

The High Court has released its judgment in Phonographic Performance Company of Australia Limited & Ors v. Commonwealth of Australia & Ors.  In that case the PPCA argued that the imposition of a cap on the licence fees payable under the compulsory licensing scheme was an acquisition of property, and therefore required to be on “just terms” by section 51(xxxi) of the Australian Constitution.   The High Court, in a clean sweep, said no.

Apparently judgment in the ISP authorization case, Roadshow v iiNet is due to be handed down this Friday.

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?

Vote STORACUTA – Stop Taking Our Rights And Calling Us Thieves Act

Stop Taking Our Rights And Calling Us Thieves Act

STORACUTA

There are manifold problems with the way the legalization of monopolies operates around the world.  One of those problems is the continual pushing of extremist positions on legal monopolies, in order for a not quite as extreme “compromise” position to be reached, which is just pushed further out in the next round of lobbying.  Instead of just opposing the SOPA, it would be more appropriate to propose alternative legislation as a counter balance to attempt to achieve a moderate position.

Provisions which could be included might be:

* express limitation of damages in monopoly infringement cases to damages actually incurred, abolition of presumed or statutory damages – per Tim O’Reilly (and many others, but Mr O’Reilly has been noteworthy recently);

* repeal of any provision which enables geographical market segmentation;

* prohibition on the use of monopolies to restrict speech;

* repeal of any provision which enables aftermarket control of goods – eg rental rights and DRM;

* an offence for a public official to call the infringement of any monopoly “theft”

* prohibition on claiming lack of sale as losses

* express application of anti-trust law to the exercise of any monopoly?

Ideas?  What would you like to see included in STORACUTA?

Note:

Tim OReilly, is The Man, by the way.   A few years ago I figured I wanted to learn Python.  I googled around for what resources were out there and, in the course of so doing, I stumbled across “free” downloads of some of the O’Reilly Python books.  I didn’t actually use the “free” versions – I bought them from O’Reilly anyway, largely because O’Reilly e-books were DRM free. Strangely, buying those first ebooks from O’Reilly was a thoroughly enjoyable experience.  I have since almost gone out of my way to buy stuff from them (Algorithms in a Nutshell? WtH?), this, despite being aware I could probably pick up a “free” copy somewhere.

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.


Blog Stats

  • 232,615 hits

OSWALD Newsletter

If you would like to receive OSWALD, a weekly open source news digest please send an email to oswald (with the subject "subscribe") at opensourcelaw.biz