Know your rights on the net

Cooper

2005-07-25T20:36:00.000-07:00

It appears that the Federal Court has made another excellent judgement regarding the bogeyman of copyright law - secondary infringement.

In Cooper a web site was programmed with hyper links to infringing items such as songs and other copyright material.

THe court found that the site 'authorised' infringement.

More interestingly, the Court also found that the ISP hosting the site had knowledge of the infringement and took a commercial gain by way of advertising on the site. By doing so they became co-infringers and were also the subject of orders.

This displays the logic of the secondary infringement standard. The authorisation is created by ommission of an act within your power to prevent infringement. It is a quasi duty not to infringe copyright -> This might become more apparent in the Grokster decision.

Grokster

2005-07-21T17:41:00.000-07:00

Ok ok ..... by now we all know that Grokster is liable for secondary copyright infringement. It not like I didnt tell you ages ago but everyone had to argue about it.

It looks like the reasons for the secondary infringement were that Grokster made a material gain from infringement of copyright despite the software being capable of substantial non-infringing uses.

What is that I hear - judge made law??

Gasp, shock, horror.

Rather than fix the old standards it appears that the court just added a new one so that:-

2nd Copyright Infringement =

1. A device or event
2. Copyright may be infringed by operation of the device
3. The device is not capable of 'substantial non-infringing uses'
4. The device creates a commercial advantage for its proprietor.

It looks to me as though the court has created a dichotomy between the rights based application of copyright law and the commerce based application of a tort of unfair competition or unfair commercial gain.

The reasons for the decision were not really based in the law but rather the policy regarding distribution of works and subject matter in which copyright subsists.

It really is much of a muchness.

Thank god for the logical Australians standards.

Hey and hasnt lessig gone quiet.

It has been many days since my last confession

2005-06-06T20:14:00.000-07:00

Sorry I have been away for so long.

I have been involved in a rather tough debate with J Straton on the Lessig blog regarding the application of 'fair use' doctrine as a 'substantial non-infringing use'. Despite a rather slow start I eventually put in some decent words care of the arguments in the United States Amici Curae Brief. Although had I been left alone I think I would have been beaten.

Anyway I am still on tender hooks to get on with reading Grokster when it comes out in the next few days. I will post up a link as soon as possible.

Copyright Norgen Style

2005-05-13T10:23:00.000-07:00

It appears that this Napster decision was very strong in line with the usual central server decisions on secondary copyright infringement. However, it appears that a different angle was taken on determining liability.
Links were provided to popular music with well-known artists, and Bruvikmust have known that the music was uploaded without the right-holders` consent. Thus,Bruvik is liable and must pay compensation for damages primarily due to the fact thatsome of the users of the website otherwise would have bought CDs. There is causalitybetween his acts and (TONO`s) loss. In addition, the Supreme Court states that liability isnot incompatible with the freedom of speech. (paragraph 67 to 70)
In reality this gets us no closer to understanding Grokster or Kazaa because Bruvik (the guilty party) was the uploader. I guess the information was held on his (or an associated) server.
But I do like S 55 Copyright Act where it state the secondary infringement standard
If the right of anauthor or a performing artist has been infringed willfully or by gross negligence,the court may also award him a sum of money as redress for damage of a noneconomicnature
Would peer to peer represent a wilful infringement or gross negligence by not creating some architecture in the software that required the uploader to provide a licence?
I guess it would when you consider author rights as held by the court the exclusive right to make the copyright available to the publiccovers the making available in any way by any mean (paragraph 42).
But still doesnt address file sharing software - the court obviously came close to considering lack of communication of licences as infringement Thirteenth, the Supreme Court refers to what the parties contend as the consequences iflinking is considered as the “making available to the public” being that linking to legallyand illegally published copyright protected material require authorization from the rightholder.The party appealing the case contend that making available implies authorization.The Supreme Court states that such an understanding of the law could probably solve alot, but could lead to difficult question as to delimitation of such an authorization, whichin turn cold lead to doubt and initiate and increase the number of court proceedings.
Thats probably a really good remark on the next round of techno IP debates.
Still it was a solid judgement despite the fact we all read this sort of thing in the last few years.
I did note this one thing that raised an eyebrow though:-
Links were provided to popular music with well-known artists, and Bruvikmust have known that the music was uploaded without the right-holders` consent. Thus,Bruvik is liable and must pay compensation for damages primarily due to the fact thatsome of the users of the website otherwise would have bought CDs. There is causalitybetween his acts and (TONO`s) loss. In addition, the Supreme Court states that liability isnot incompatible with the freedom of speech. (paragraph 67 to 70)
Junichiro Ito must be annoyed.

Fair Use

2005-05-10T22:05:00.000-07:00

By the way, the fair use discussion paper is out.

Cheers again IPwar

Deep (Linking) Thought

2005-05-10T21:56:00.000-07:00

HHGtTG Reference:-

I have recently had the pleasure of reading an essay by Ivan which is available here.

It notes the practice of deep linking.

As you may be aware from reading my blog I am deeply conservative and orthodox in my views of copyright infringment and deep linking has presented a problem.

The concept of deep linking is using a hyper text link to send the user to a page behind the web pages main page.

Ivan argues that deep linking is not illegal if it is an outlink - that is the link takes the browser to the web page directly and does not display any additional information.

Inlinking however, that is where a frame or header from the original site is displayed over the linked information is illegal on the basis that it imports copyright data into the infringers web site.

However, all of this works on the basic assumption that each individual page is a work. It may, in the future, be arguable that the total website and all individual pages represent a single work. In this case, it would appear that by deep linking, even outlinking, you would be communicating a work to the public and therefore infringing copyright. THERE ARE MAJOR PROBLEMS WITH THIS ARGUMENT BUT I THINK IT MIGHT BE RAISED - especially in the context of site owners who derive revenue from site advertising that appears on thier home page. By deep linking and avoiding the advertising the site owner cannot charge the same amount of fees.

Something to think about in the future.

Big payout for Plans

2005-05-04T20:02:00.000-07:00

In the recent decision of my local district court in Vanwake Investments Pty Ltd v New-Stat Nominees Pty Ltd & Ors [2005] QDC 57 it has become fairly obvious that copyright infringement will not be tolerated.

In the case a designer who had created a set of plans for a shop fitting was knocked back to complete the job. The owner of the shop passed a pencil drawn plan to a new shopfitter and had him complete the job.

The court had this to say about pencil drawing a similar plan:-

It was submitted on behalf of the defendants that if Mr Rowe intended merely to copy the plaintiff’s plan he would not have gone to the trouble of producing the hand drawn sketch Exhibit 39 as the first step. But in my opinion there are obvious answers to that. In the first place, he would have wanted to conceal even from others within the defendant companies that he was copying the plaintiff’s plan. Mr Dillon’s evidence suggests that he was concerned even to conceal that from him. Ordinarily within the fifth defendant plans started out with a pencil sketch by Mr Rowe (p.271), so this plan had to start off the same way. Besides, it would be too blatant a breach of copyright simply to use photocopies of the plaintiff’s plans as working drawings. Apart from these considerations, Mr Rowe would have wanted to make use of his standard display modules and fittings, and the preparation of the pencil sketch permitted an interpretation of the plaintiff’s plans by reference to those standard modules of the defendants. It also gave Mr Rowe the opportunity to introduce a couple of design ideas of his own. Accordingly I do not think that the use of a pencil sketch as the first document which was copied is at all a reason to reject the proposition that it was produced by copying.

But the real harshness came in the damages bill.

Damages were awarded in the amount of 10,000.00 for the infringement itself.

The court noted that reduction of damages on the basis that the designer could have worked on another job was not reasonable:-

Another consideration is whether this really did represent loss of profit, in the sense that, because the plaintiff was not doing this job, it was able to devote its resources to other jobs which acted as an alternative source of profit. Mr McConaghy said that they had been making some allowance in their programming to do this job (p.120), and when it fell through they had some difficulty in keeping work up to employees: p.121. That suggests that it was not the case that the profit which would have been earned on this job was simply earned on some other job instead. On the whole I do not think that this is the sort of case where other transactions in practice made up in other ways the profit which would have been earned from this job had it gone ahead.

The court then turned to additional damages under Bailey v Naimol:-

As to the first of these, this was a fairly flagrant infringement. The plans were identified as the plaintiff’s plans, and in the circumstances as I have found then Mr Rowe must have known that he was copying the plaintiff’s plans. It is apparent from his evidence that he knew that this was wrong, and as early as 15 September there was correspondence from the plaintiff’s solicitors claiming copyright. This was after all the plans had been drawn, but before any of the work was done. I think it unlikely that that correspondence would have come as a surprise to the defendants, but in any case the third and fourth defendants proceeded with the construction of the shop on the basis of the plans after the correspondence.

The court noted damages of $25,000.00 would suffice for the usual 'notional Licence Fee' approach Raben Footwear v Polygram Records however the court went onto note that where there is a greater amount of damage that the court may award this amount:-

In my opinion the notional licence fee and vindication of property right assessment is essentially one which is applied in circumstances where it cannot be shown that the plaintiff has suffered actual loss in a greater sum. Where however a greater actual loss can be shown, that in my opinion is the appropriate approach for the assessment of damages. For that reason I assess damages of $64,000. For reasons given earlier, each of the defendants is jointly and severally liable for this amount.

This is probably the largest award of damages that we have seen in the DIstrict Court for a copyright infringement case. I was beginning to get worried after the Carlisle Homes and Macedab decisions where a little over 500.00 dollars was awarded for infringement of a house plan.

I applaud the court for properly addressing the damages faced by a designer of artistic works that are flagrantly ripped off without a hint of reward - Bravo.

US Lawyers

2005-05-02T02:12:00.000-07:00

I think I know why it takes so long to move in the US legal system: They dont read the law - take a look at this and try and find some law: http://writ.news.findlaw.com/commentary/20030508_sprigman.html

Here is my post in response:

Alex Stewart - 02:57am May 2, 2005 (7902. 13254/13254)

Grokster Kazza and Morpheus

If the architecture of the software is so important why didnt anyone at the record companies try to determine whether licences could be granted over the peer to peer network?

As I understand it the standard for (remember I am Australian reading american law) that a person will be liable for secondary (contributory) infringement where their product is not capable of any substantial non-infringing uses. If there is a non-infinging use then there is no liability so long as the producer has not activiley induced infringment.

Now as I see it a copyright infringment occurs whenever a right in copyright is excercised without a defence at law or licence or authority from the owner.

As far as I understand the argument for non infringing uses is based on valid reproduction of material and communication to the public BUT if I were anyone except the true owner how would I get a licence to use the put the works on the grokster system?

The truth is you couldnt - because THE LICENCE TO WORKS SHARED ON GROKSTER COULD NOT BE COMMUNICATED BY THE SOFTWARE. In essence all files transferred into a grokster file where they would be further transferred through peer to peer are infringments.

Now there may be a substantial non infringing use if only true owners of copyright placed items in Grokster files. But Grokster activley induced people to further infringe copyright by making the default saving of files the grokster folder from whence all these files would be shared - I would call that an active inducment.

Grokster is guilty as is Morpheus and Kazaa is much more likely to be taken down in Australia.

If you want to know the truth this issue is political and has been hijacked.

EFF off

2005-04-26T22:48:00.000-07:00

The copyfight ip war is getting political. There seems to be a new focus group aimed at getting free culture up pop up every minute.

The thing is that thier sites are usually pretty good.

I found many useful case notes on the Electronic Freedom Frontier Website.

I also got the best angles on the Grokster litigation from Grokster itself.

But the blue Ribbon goes to Public Knowledge Foundation whose website carries the most in depth and comprehensive analysis of the Free culture debate.

Its too bad that there arent any web sites for orthodox application of intellectual property rights that I know of.

Moral Rights worth something

2005-04-26T21:57:00.000-07:00

If yo ever wondered whether moral rights were all junk and just some namby pamby feel good add on to the Copyright Act then take note of Adams v Quasar Management Services Pty Ltd & Ors [2002] QSC 223.

In Adams the inclusion of a work falsely attributed did not in itself cause financial loss but was to be considered when making a reward for breach of contract ($65,000.00).

It looks like moral rights may be concurrent and work to bump up the damage.

US Marshalls v the bandido

2005-04-26T21:44:00.000-07:00

It looks like US companies are really out to protect thier copyright.

In Griffiths v United States of America [2005] FCAFC 34 the Full Court of the Federal COurt had to decide whether a criminal infringer of software through the internet was to be extradited to the US.

The hacker in this case took valuable software and provided it through a pirate warez site.

The question here was whether there were grounds to challenge the extradition.

Nothing about internet law but it is interesting that someone would go so far for what appears to be a small amount of infringement. I guess youve been warned, Yee Haaa.

Cool Blog

2005-04-26T21:13:00.000-07:00

Havent seen this one before:-

http://www.dbs.id.au/blog/

Trade Marks on the Net

2005-04-26T18:12:00.000-07:00

I have been considering the effect of the decision in Dow Jones v Gutnick and MacQuarie Bank v Berg on the law of trade mark for quite some time, in particular, the issue of whether internet publication of a trade mark may infringe and damage a trade mark in a foreign jurisdicition.

It would appear that the Federal Court believes it would b possible in the decision Ward Group Pty Ltd v Brodie & Stone Plc [2005] FCA 471 (22 April 2005).

I thank Weatherall for pointing the case out.

The case turns on the question of 'use of a mark' and whether such use is made in Australia by loading the infringing mark on a server in a foreign jurisdicition. The question was raised in my mind because Dow Jones says that defamatory comments are 'published' in any jurisidiction where it may be downloaded. The consequence is that publicaiton may consitute use and therefore use is done in every jurisidiction where it is downloaded.

The Federal Court do not quite like this logic and argue that the mere uploading of infringing material onto the net is not use of a mark but that:-

Of course, once the website intends to make and makes a specific use of the mark in relation to a particular person or persons in a jurisdiction there will be little difficulty in concluding that the website proprietor used the mark in that jurisdiction when the mark is downloaded

This decision has consequences for our understanding of internet law because it does not totally accept the principles in Dow Jones of outright publication in the jurisdicition. However, the decision appears to be correct because the only downloads into Australia was occassioned by the plaintiff's solicitors. Furthermore, I still have gripes about using american case law in internet matters.

Something I did this morning

2005-04-25T22:48:00.000-07:00

Just an article I wrote for the boss:--

Software Licences: Things you need to know to get on the Net

The law of intellectual property has been challenged by almost every technological leap and bound that mankind has made since its’ creation more than 500 years ago. In particular, developments in information sharing and reproduction technologies such as the printing press, Xerox machine and videotape.

It will come as no surprise that the advent of the computer and internet has again shaken up the views of intellectual property lawyers from around the world. In recent times we have seen Napster[1], Kazaa and Grokster become household names, orders seeking extradition of criminal copyright infringers to the US and lengthy arguments in the High Court over the popular Playstation console[2].

This litigation is shaping how we view and control our proprietary copyright in a world where copying has become instantaneous, systemized and costless.

Despite the new conditions that we endure the Copyright Act continues to apply. The Copyright Act expressly states that exercising a right in copyright such as reproducing, adapting or communicating a copyright work to the public[3] is an infringement of copyright[4]. An infringer may avoid liability if they hold a licence. A licence is a permission or authorisation from the owner of a copyright work to exercise a right of copyright in the work[5]. The owner thus negates their own right to seek relief for an infringement and in return the owner may insist upon certain terms or conditions of use of the work.

The requirements of having a licence in a work does not cease when you login to your computer. It is incumbent on you and your client’s to take heed of the licenses that you give or receive.

The problem with the internet is that just about everything is subject to copyright protection and it is easier to click a button and download a program, image, sound recording or picture than to read all the terms and conditions. You may be downloading material and using it for infringing purposes, or even worse, incorporating those materials into your own products.

You must always remain aware that until you or your client has permission or rights to use a copyright work you will probably be infringing copyright.

Most licenses on the internet relate to downloadable computer programs and are known as click wrap licenses, that is, upon clicking the download key you will be entering into the agreement with the licencing party.

Generally a click wrap licence will restrict the licensee from performing anything with the computer program except storing it in their hard drive and running it through their micro processor, however, some variations of a click wrap licence may include:-

Shareware: a shareware licence applies to restricted programs which may be distributed to other people. Such programs may only work for a few days or may only feature a limited number of functions of the full program.

Freeware: a freeware licence applies to a complete and unrestricted program and allows you to use, distribute and copy the program as many times as you like. The only restriction on a freeware program is that you reproduce the program in full rather than taking certain parts of the code and using it in your own programs.

Open Source: an Open Source licence allows the licensee to use the program and change the internal coding of the program so that it functions differently. The only drawback on Open Source software is that the licensee must license the licensor to use and reproduce all alterations to the software. The other caution on Open Source is that it cannot be sold readily as this would infringe the copyright of the licensor, rather, the software may be transferred to another party in exchange for a fee.

The internet has not only affected computer program licencing but it also impacts on licenses in traditional forms of copyright such as books and sounds that may be transmitted through the internet.

Creative Commons Licenses[6]: The Creative Commons licence is a licence that allows you to use and distribute a work in much the same way as open source. If you place a copyright work on the internet under a Creative Commons Agreement anyone may take and alter that work. Furthermore, if you take works under Creative Commons you may be forced to transfer that work back to the licensor or acknowledge the works of the licensor. Creative Commons works also come under a non-commercial variation which does not allow for remixed works to be sold.

These licences are becoming ever more popular with reportedly 10,000,000 works under Creative Commons Licence on the web[7]. They are also playing a pivotal role in the Grokster litigation where they may, despite not appearing on the Grokster software, prove a non-infringing use and thus save Grokster from secondary copyright infringement proceedings.

The rights that you have been afford or which you may afford others must be considered whenever you download or upload your material to the internet. These licenses will probably determine whether you infringe another person’s work, how you obtain payment for your works or whether you are giving away your material for free.

[1] A & M Records v Napster (2001) 239 F 3d 1004, 1021 (9th Cir).
[2] Stevens v Kabushiki Kaisha Sony Computer [2004] HCATrans 273, 313 and [2005] 30
[3] Section 31 Copyright Act
[4] Section 36 Copyright Act
[5] Section 15 Copyright Act
[6] http://creativecommons.org/
[7] http://www.copyright.gov/docs/mgm/creative-commons.

Why do they pay lawyers??

2005-04-21T21:01:00.000-07:00

If you read the first two paragraphs of the Brief on behalf of the Respondents you will ask yourself 'Why do they pay lawyers?'.

The opening reasoning states that "That contention is foreclosed by Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984), which held that no secondary liability may attach to distribution of an article of commerce, even with "constructive" knowledge of infringing use, as long as it is capable of significant noninfringing uses.

Yes I do agree that was said in Sony - of couse in that case the non-infringing uses did result from time shifting a licenced broadcast which implied by the broadcast falls straight onto the Video tape where as Grokster users couldnt share thier licences for all the world due to the architecture of the software.

But the court went on to make an exception of 'Active inducement'. It does not appear logical to deny the existence of this exception or to try and sweep it under the vicarious liability of copyright infringement.

Oh well - they won in the lower courts - I wonder if they will win in the Supreme Court as well.

Where did all the money go???

2005-04-21T20:24:00.000-07:00

I note Warick Rothnie's blog IP Wars has made some rather interesting comments on the characters behind Kazaa who have apprently begun liquidating thier Sydney properties.

His comments are quite good and you should give them a look.

I do have one issue with this case. I was going through the various decisions that have been made regarding the Anton Piller and Mareva order that have been made through the course of this case and noticed that the respondents have engaged a number of different solicitors from very expensive and powerful law firms.

I am not sure why all the changes but there may be a good reason for it. The respondents wanted different representatives or specialists or opinions. I think there is a better reason but I dont not wish to speculate on why a lawyer would not continue to act for a client after being engaged on such a massive case nor why a respondent would want to change over to another set of high priced lawyers.

All Im going to say is that there is an army of lawyers waiting to support Kazaa- lets hope that one of them can finally get to legal argument.

Data Mining and Copyright Infringement

2005-04-19T20:42:00.000-07:00

In the recent decision of French J of the Federal Court Nominet UK v Diverse Internet Pty Ltd [2004] FCA 1244 the issue of data mining and copyright infringement were considered at length.

The decision contemplates an Australian Company Director, Norrish, that used the Nominet UK Domain Name Registration Database to determine the Domain Names and mailing addresses of British companies using the .co.uk domain name.

Norrish owned companies took the mined data and sent mail outs stating that .co.uk domain name owners did not have .com domain names under the name (UK) Internet Registry (also owned by Norrish).

The question of misleading and deceptive conduct aside -(IE (UK) Internet Registry is not an official organisation)- the court considered authorisation of infringement or secondary liability.

The court found copyright infringement outright and were concerned with whether Norrish being a director of the company had any idea what his employees were doing.

They stated the correct construction of secondary liability as ‘... meant that express or formal permission or active conduct indicating approval was not essential to constitute an authorisation.’ WEA v Hanimex.

The court then expressed the qualification in Nationwide News v Copyright Agency: ‘Nonetheless, a person does not authorise an infringement merely because he or she knows that another person might infringe the copyright and takes no step to prevent the infringement.’

The court then made an anology with the decision of Australasian Performing Right Association Limited v Jain (1990) 26 FCR 53 where a hotel director who made no conscience effort to prevent infringement or obtain licences from APRA. The result was infringement.

As a result Mr Norrish was not allowed to rely on not personally making the decision to infringe because he failed to take necesary steps.

The quote of the court in Jain may in fact be a message from French J (A pre eminent commercial and IP Judge) on the Kazaa litigation:-

‘The judgment of the members of the High Court in the Moorhouse case establishes that one of the meanings of the word "authorise" in the context in which it is here used is "countenance". It may be that not every act which amounts to the countenancing of something is an authorisation. Every case will depend upon its own facts. Matters of degree are involved. But the evidence in the present case reveals, in our opinion, a studied and deliberate course of action in which Mr Jain decided to ignore the appellant’s rights and to allow a situation to develop and to continue in which he must have known that it was likely that the appellant’s music would be played without any licence from it. It was within his power to control what was occurring be (sic) he did nothing at all. In those circumstances we have reached the conclusion that the appellant established that Mr Jain authorised the infringement of copyright in question contrary to s 36 of the Act.’

I guess we will have to wait and see.

Privacy and your ISP

2005-04-19T20:02:00.000-07:00

The privacy Act has had a wide ranging effect on all manner of company. The real difficulty in determining the application of the National Privacy Principles to private corporations such as Internet Service Providers is reading the fine print.

In N v Internet Service Provider [2004] PrivCmrA 10 the Privacy Commissioner rightly directed a complainant to contact the ISP (who allegedly committed the breach) before coming to the Commission. This is the correct application of Section 40(1A) of the Act which states that the Commission cannot investigate a matter that has not been brought to the attention of the potential respondent.

The complainant could not just notify the potential respondent and then make a complaint as the Commission has the discretion to ignore complaints where the complainant has not given adequate oppurtunity to resolve the issue under Section 41(2)(b) of the Act.

The complainant appeared to settle the matter without having to return to the Commission.

This case shows that be carefully reading the rather complex Act you can avoid the costs of taking unnecesary steps when protecting your privacy.

Baited Breath

2005-04-18T18:34:00.000-07:00

I await the following decisions with baited breath:-

Sharman v Universal (The Kazaa Case)
Stevens v Sony (The PS2 case)

and of course the big US one

MGM v Grokster

THe courts are really taking thier time or am I just impatient.

Beck v Montana revisted and applied

2005-04-17T23:09:00.000-07:00

Beck v Montana is the famous case implying licences into copyright created for some specific purpose to use the work for that purpose.

Now usually a property developer purchasing land for which copyright plans have been created would have an implied licence to use those plans for the purpose of construction whether or not the architect was still the owner of the plans.

The court in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2004] FCA 1312 (13 October 2004) were asked to reconsider this point where there is no chain of ownership between the author or original implied licencee and the property developer.

This position was challenged on the basis of the recent decision in Torpey Vander Have Pty Ltd v Mass Constructions Pty Ltd [2002] 55 IPR 542 a] where it is stated that a prospective developer must show a chain of instruments or other dealings as between itself and the persons from whom it claims to have acquired a licence back to the person to whom the licence was originally given, or if not given, then back to the author and owner of the copyright’

The Court in Torpey is obviously trying to ensure that the implied licence in copyright and contract remains as an in personam right from the author to licencees rather that an in rem right attaching to the land. The distinction has been blurred various times.

The blurring here was whether a sale by a trustee for sale was sufficient a chain of implication of the licence to use the works.

The court resolves this issus by stating that the authority to sell the property carried with it the authority to exercise the licence.

The issue would have been different had a mortgagee made sale by foreclosure or excercise of the power of sale as there would have been no authority or transfer or event consistent with the Torpey chain of assignment of the in personam right.

Therefore the rule is implied licences are passed between owners of title who authorise the sale of the land as it is with implied licences rather than by third parties who are only concerned with the land itself and who have no rights in the implied licence.

This does raise a question to my mind:- If we apply Concrete arent we assuming that the transaction that takes place includes the in personam right? Isnt there an implication that the in personam right is bound to the in rem rights in the land???

Concerte was correctly decided because evidence of the authorisation was adduced, however, it is something to consider in the future.

Are Trade Marks a form of Intellectual Property?

2005-04-17T21:42:00.000-07:00

It sounds like a stupid question but in the decision Guttershield v LBI Holdings [2005] NSWSC 113 someone actually asked it.

The court did not seem amused as G Grinter argued that a contract for sale of intellectual property in a company did not include the trade marks. The argument was that:- An indicator of a trade connection does not, he implies by this submission, sound very much like “property”, nor is there anything intellectual about it.

In probably the shortest decision of all time Justice Campbell made the point 'In my view, trademarks are capable of being “intellectual property" developed by the Alliance”.'

However, In the course of submission Mr Grinter accepted that the word “trademark” has come, however, in common usage, to be part of “intellectual property".

Well that barrister certainly earned his fee.

SCO v IBM

2005-04-14T23:32:00.000-07:00

Ive just read the claim filed by SCO in the Third Judicial District of Utah.

The low down is

SCO bought the full rights in UNIX from Novell who bought those rights from AT&T.

AT&T, the original owner, licence IBM (and others) to sell those works and derivative works based on thier processors.

SCO took thier copyright subject to these licences which left SCO with the exclusive rights to create UNIX systems for intel based processors.

SCO and IBM began 'project Monterey' - SCO allege that IBM became aware of various trade secrets and architectural designs from SCO during this period.

When Monterey was nearly completed IBM pulled the plug and began involvement in the Linux Kernal. IBM dumped some of the derivative works from thier UNIX system into Linux.

When the derivatives were in the Kernal it became accessible to the Linux Open Source Community and therefore available to thousands of users.

SCO claims that they should be given relief for breach of confidence (trade secrets), breach of licence and intereference with contract and unfair competition because of the disclosure of the derivative works into Linux.

The main question concerns derivative works created under a licence and whether these derivatives are in some way vested in SCO. If that is the case then SCO may have a right to extract licence fees from IBM.

The fact that there are almost 1.5 million lines of code does not make it any easier.

Some of that may be original SCO code or derivative works or IBM code or Open Source Code. Which might explain the lack of evidence and time before filing.

In any event I will answer this question when I get back wrt the consequences of all 4 in relation to breach of licence and breach of confidence.

P2P goes to the movies

2005-04-14T21:00:00.000-07:00

Although P2P could theoretically be used for movies and probably has been over super nodes and Internet 2 it now appears that a new p2p software is coming out called Grouper that is specially designed to allow sharing of files.

Grouper claims that it will be used to transfer images and movies within a select group of people and in total privacy.

This raises two issues - Firstly because each person is selected does that do away with the 'you can't just say youre licencing to the world and not actually do it' argument and Secondly if it is totally private how will the RAII and others ever find out if there have been infringements.

I suspect the secrecy is aimed at proving a 'non-infringing use' although as BoingBoig points out it is probably wise for this to occur if people are sharing images of thier kids. (Public Policy argument is available here)

I am still not convinced that grouper will be any better off than KaZaa and Grokster (but lets wait to see thier fates) because the same principle of sharing applies despite decreasing and controlling the circle but it certainly is a step towards legailty.

P2P all the money away

2005-04-14T20:26:00.000-07:00

If I see any more stories like this one I think I will put the lid on the Creative Commons proposition that P2P actually helps the music industry.

http://australianit.news.com.au/articles/0,7204,12841339^15331^^nbv^15306-15318,00.html

By the way thanks to IpKat for pointing it out.

http://ipkitten.blogspot.com/

Thanks Disney (as if the Lion King wasnt enough)

2005-04-14T17:31:00.000-07:00

Naxos Records -v- Capitol Records

It looks like we are beginning to see the real impact of the long life copyright proptection in the United States under the Sony Bono Copyright Amendments.

Naxos Records transfers old recordings onto new technology and republishes them. These include old concert pieces and the like. Naxos recontly moved into the late 30's works which had run out of copyright in Britain.

EMI, the british record group, used one of its US subsidiaries Capitol records to sue Naxos for copyright infringement in the United States for sales of recordings of Yehudi Menuhin, Edwin Fisher and Pablo Casals where copyright is alive and kicking.

Have a look - these are the dates that copyright in a work would expire in Australia, UK and the US if the author had lived until 1950 or the work was created in 1950 and been assigned to a corporation.

Person Corporation

Australia 2000 2000
United Kingdom 2000 2000
United States 2020 2045

Or at least that is how it seemed before Naxos.

The particular case concerns music recordings. According to the decision in White Smith v Apollo music recordings were not subject to federal copyright. Therefore the common law copyright protection that survived in the United States under state law allowed a 'perpetual period of protection'.

In 1972 the Copyright Act was amended to include musical compositions in the form of recordings and accordingly were published. The mechanism of the Copyright Act meant that protection began to flow from federal statue in 1972 and therefore all musical recordings before that date are now protected until 2067.

The decision itself is a result of the failure of the federal government to recognise musical recordings. If the decision is upheld we can just put it down to poor drafting and a lack of recognition of new forms of copyrights. But the result is that sound recordings created in the eighteenth and nineteenth century in the United States will recieve protection for over 150 years.

The only criticism of the case is whether 'publication' is really prospective. Although it may be expressed in such a way the actual date of publication was not 1972. This is an example of blind adherence to a law that will prevent the rest of us from enjoying works that should but for this oversight exist in the public domain. -> Whats the purpose of Intellectual Property law after all..

The irony

2005-04-14T17:09:00.000-07:00

It seems a little ironic to me but it looks like KaZaA has used copyright infringement to threaten Google for listing several websites that contain infringing materials.

http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=861

It sounds almost too close to secondary liability for my liking.

As you can imagine Google gave in and now we are censored from seeing the sites.

"In response to a complaint we received under the Digital Millennium Copyright Act, we have removed 5 result(s) from this page. If you wish, you may read the DMCA complaint for these removed results."

One day it is the sword in your hand and the next it is over your head.

Welcome

2005-04-14T11:30:00.000-07:00

Welcome to the wonderful world of blogging.

My name is Alex Stewart and I have no qualms about putting my name and ideas into the public domain for the purposes of you consideration.

I am a paralegal at a specialist Intellectual Property law firm in Brisbane Australia.

It is my purpose become a specialist in the field of intellectual property because I believe that IP is one of the four pillars of economic development (Read The birth of plenty).

Wikied

2005-04-13T23:56:00.000-07:00

Just as I was thinking about starting a Wiki paedia for law I found this link on the IP Wars web site.

http://legal.jot.com/WikiHome

Damn

Well we may still need one in Australia.

MGM v Grokster

2005-04-13T21:26:00.000-07:00

Here is a link to the Briefs in the Grokster Debacle.

http://www.copyright.gov/docs/mgm/index.html

I especially like the AIPLA brief for the applicant and cannot help but respect the point made by the Creative Commons people.

I have also put up a link to a leaked document that details RAII's knowledge of the case.

http://www.fuckedcompany.com/extras/riaa_memo.cfm

It may be illegal but I think it is worth it now that it is in the public domain.

Grokster and Kazaa

2005-04-13T17:50:00.000-07:00

The peer to peer networking litigation is the latest and probably most important internet copyright litigation of this decade.

The cases involve entertainment companies attempting to restrain and seek damages from companies that publish software that allows users to share data. The predominant use of the software is sharing music files without licence or rights in copyright.

The litigation is now reaching the highest courts in both Australia and the US and comments are flying in favour and against both parties.

The arguments seem to pit the notion of free speech and culture against the property in copyright. THe day had to come when this issue was raised again.

Anyway, despite all the political rhetoric if the standard is going to be 'capable of non-infringing uses' then we are assuming that the first licence used to transfer the data to the Grokster system applies to all the other transfers.

So far as I can see if the architecture of the software doesnt allow for a licence to be granted therefore there is no grounds for anyone to claim permission to reproduce or otherwise infringe copyright.

how would anyone know that they weren't infringing copyright unless the particular work was also transferred with a copyright licence?

I understand that a licence may be granted to the whole world (The music sheets case) but there has been no grant of such a licence on the grokster system.

Therefore the system is not capable of non-infringing uses and MGM should succeed

Although there may be an activce inducement argument as well I think that the head of the Beta max (1974) decision could also apply.

Too bad RAII and MGM havent taken up this argument