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?

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.

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.

Three Strikes LobbyNomics in NZ

Three Strikes LobbyNomics in NZ

ZeroPaid is reporting that the NZ three strikes law was the result of the US pressure.  There was a time when NZ was able to stand up to the US.  Now everyone is spineless.

iiNet: Disturbing Full Federal Court decision

iiNet: Disturbing Full Federal Court decision

The full court of the Federal Court handed down its decision in the iiNet case (on appeal from the judge at first instance) in February of this year.  While there’s a lot of the decision about which to be anxious if you’re a business, this statement by Emmett J cannot be correct:

The infringement in question is an infringement by the iiNet customer whose account is being used. An iiNet customer whose account is being used to make Films available online cannot deny responsibility for the way in which the iiNet service is used. The iiNet customer must accept responsibility for the way in which the service provided by iiNet to that customer is used. Infringement by an iiNet user of a computer attached, by means of a router or otherwise, to a modem to which an iiNet service is provided, is a use of the service provided by iiNet to that modem. An iiNet customer is infringing by permitting the use of the service for infringement. [at para 157]

Surely an iiNet customer is liable only if they are doing the infringement themselves or if they are authorising the infringement.  Mere coincidence of circumstances should not suffice.   If it did, why would they need to put out hundreds pages of judgment considering iiNet’s liability?

Jagot J makes a similar leap:

The first, which arises from the above discussion about collective punishment, is that I do not accept the validity of the distinction iiNet consistently sought to draw between iiNet customers and iiNet users. As iiNet’s CRA and other policies disclose, iiNet (at least in all respects other than copyright infringement) operates on the basis that the iiNet customer is taken to be responsible for the use of the customer’s service by any other person. The customer is taken to be responsible not only in terms of payment but also potential sanctions for misuse of the service including warnings, suspension and termination of the service. This basis of operation, reflected in the CRA and other iiNet policies, is a practical necessity given the way in which internet access is provided. It is also appropriate to operate on that basis in the copyright context. [at para 390, my emphasis]

On what basis can this emphasised sentence be justified?  Given that iiNet’s terms seek to identify customers and users, such a fusion might be justified for the purposes of analysing the contractual relationship between iiNet and a customer, but iiNet’s terms are incompetent to tar a customer with another user’s infringement under copyright law.

It is useful to note in this context, that in the few months since the decision a company related to one of the litigants (Sony) had its customer’s data taken in a widely publicised server cracking.  Judges should not be quick to discount the possibility that people’s wifi routers do get hacked from time to time.

Copyright Strikes Borders AU, Angus and Robertson

An article in the Age reports that administrators have been called in to the Borders operation in Australia and Angus and Robertson booksellers.  They say:

Businesses such as Borders have been particularly hard hit by the rise in popularity of e-commerce sites that sell a vast range of books online at heavily discounted prices to traditional bricks-and-mortar shops. The strengthening Australian dollar has also encouraged shopping on overseas websites.

They pay a higher price solely because the Copyright Act forces them to.  Booksellers aren’t allowed to parallel import books because the legislature didn’t care about sacrificing them on the altar of copyright extremism, despite overwhelming evidence in support of the practice.   Evidence clearly has no part to play in policy making on this area of law in Australia.  Now Australian authors have a substantial local retail outlet under threat and, if they lose these booksellers, will be in a similar position to what they would have been had the parallel importation provisions been passed.

Well done, brainiacs.

William Patry: Copyright Wars

About a month ago (on November 5 this year) I ordered four books from Amazon, including William Patry’s “Moral Panics and the Copyright Wars”.

About an hour and a half ago I was in Borders at the Macquarie Centre and saw some of the books I had ordered.  Had I bought them from Borders it would have cost me maybe 2 or 3 times the price I paid.

About half an hour ago I got home and found my books had arrived.

About ten minutes ago I had a look at Mr Patry’s – well, to be frank, I just skipped to the conclusion:

“The Copyright Wars must be understood as archetypal responses of businesses that are inherently non-innovative and that rely on the innovation of others to succeed.  I cannot think of  a single significant innovation in either the creation or distribution of works of authorship that owes its origins to the copyright industries.  Being forced to rely on others’ innovatoin creates a great sense of insecurity that is reflected in efforts to control innovators and consumers…

…

In other areas where a government monopoly… is blatantly abused over a long period of time, it is taken away.” @198-199

Touche!

Oracle v SAP: Where are the Feds?

Oracle v SAP: Where are the Feds?

Throughout the news are many reports of a record damages award against SAP in a copyright lawsuit brought by Oracle (see also).  It stands to reason therefore that the infringements in question were done on a commercial scale.  However, nowhere can I find any mention of criminal charges being brought.  If copyright infringement is such an important issue to the US economy why haven’t law enforcement authorities brought charges based on this finding?

Is it just my ignorance?  Have charges been laid already?

Note here: I’m not talking about an (per Ellison) ‘“industrial espionage scheme” to steal Oracle software‘.  Rather, criminal copyright infringement.  There is speculation about charges, and that the DOJ has had “an interest in the case” since 2007 – but it is not clear whether they refer to unauthorised access or copyright infringement.  Apparently the DOJ are neither confirming nor denying.

Talking Copyright Sense in Europe

Neelie Kroes (EU, who previously got serious on computer interoperability) getting serious in EU:

Yet, it does not mean there are no more obstacles to sharing cultural and artistic works on the net. All revolutions reveal, in a new and less favourable light, the privileges of the gatekeepers of the “Ancien Régime”. It is no different in the case of the internet revolution, which is unveiling the unsustainable position of certain content gatekeepers and intermediaries. No historically entrenched position guarantees the survival of any cultural intermediary. Like it or not, content gatekeepers risk being sidelined if they do not adapt to the needs of both creators and consumers of cultural goods.

David Cameron (UK) taking baby steps:

“Over there [in the US], they have what are called ‘fair-use’ provisions, which some people believe gives companies more breathing space to create new products and services.

“So I can announce today that we are reviewing our IP laws, to see if we can make them fit for the internet age. I want to encourage the sort of creative innovation that exists in America.”

Copyright Harms Australia Again

Copyright Harms Australia Again

                             Amazon (AUD)  Booktopia  Australians Ripped off by
The Wealth of Networks: Ho...   $15.63     $27.80         78%

   Ajax: The Definitive Guide   $36.19     $66.75         84%

Star Wars Clone Wars Chara...   $13.27     $23.40         76%

                        Heads   $14.06     $19.95         42%

So, for example, the best price from Booktopia in Australia is 1.78 times the US price of the Wealth of Networks book when expressed in AUD, or Australians pay 78% more for the book.

Prices exclusive of delivery.  Delivery is calculated differently, but price is roughly equivalent, with longer nominal delivery time for Amazon (weeks vs days).

I also looked up the first two in the Nile and emporium books but the prices were slightly more expensive.