Grokster, Kazaa, and Orphan Works. Links, Links, and More Links.
In case you hadn't heard, Grokster was heard this week in the US Supreme Court.
I could spend a whole lot of time collecting links on the coverage. Or I could (and will instead) just point you over to Copyfight. A quick scroll will find you plenty of links to coverage on the hearing.
And another Kazaa Link: I had not noticed (shame on me) that the blog that covered the Kazaa hearing, day to day, also covered final submissions. Check it out here. (hat tip: Robert Chalmers from Adelaide!)
On Orphan Works, I noted the other day that the Copyright Office deadline had passed for submissions on the same. Now, they're available. The official website is here. Another link to a website which is apparently better set out here. By the way, maybe WIPO should pay attention to this suggestion from Paul Geller:
'The problem of orphan works is best solved globally. Such a solution should facilitate making orphan works accessible to members of the public worldwide. The solution should also spare users the trouble of having to start procedures with national copyright or like offices one after another. Indeed, it would be misleading to suggest to users that any purely local solution would fully facilitate their making orphan works accessible to the public in cyberspace. The United States should therefore not lock itself into a local solution before there is a treaty provision pending that would effectuate a global solution. The most that the United States should do now is explore a treaty-ready provision'
Finally, a Workshop of the AHRB Research Network to Consider New Directions in Copyright Law was held at UNSW yesterday, organised by Kathy Bowrey. There were some great papers:
- David Brennan on Broadcasts as Copyright Property
- Johanna Gibson on A Right to My Public? Copyright, Human Right or Privacy?
- Matt Rimmer on the The Garden of Australian Dreams: Moral Rights of Landscape Architects
- Adam Shoemaker on The Case of Livia's Head
- Guido Westkamp on International Copyright Conflicts: Artistic Cultural Expression, Performing Artists and the Resale Rights
- Robyne Quiggin on The Resale Royalty and Indigenous Artists.
And me, on the new Australian Performers' Rights Regime. I understand papers will be put up on the AHRB website, so keep tuned if any of these interest you...
waaaaaay off topic, but I just love this headline:
'Frat porn film storm'.
Some copywriter had so much fun with that.
News from around the world on IP
Just a few pointers this morning to some news stories around the world:
Here, Michael Geist's commentary on the Canadian Government's newly announced policies on copyright and particularly digital copyright. Geist makes the point that Canada appears to be saying "no" to the DMCA, and has pulled back from the copyright maximalist approach that appeared to be advocated by a Heritage Committee report preceding this announcement.
And here are some links to pre-hearing coverage of the Grokster case, to be heard in the Supreme Court in the United States this week - the case on liability for P2P software provision:
Finally, according to a report from the Pew Internet & American Life Project, the number of music downloaders using P2P networks has dropped in recent months. By contrast, other methods of swapping music are gaining ground. iPods, along with instant messaging, blogs and other sources, are becoming a popular music transfer tool. Can't wait to see the case brought against the iPod...
More news on the 'AFP-sues-Google' story
I blogged a few days ago about about a decision by Agence-France Presse to sue Google for copyright infringement, alleging that the Internet search engine included AFP headlines, news summaries and photographs published without permission - a decision that has been referred to (correctly) elsewhere as 'brain dead'.
The story has an amusing turn to it. Google complied - and started removing links to Agence France Presse stories.
Of course, being taken off Google means effectively being unlocatable on the Internet. It translates to no traffic. So, unsurprisingly, some of AFP's customers are deeply upset by AFP's move - they've lost traffic and value. With any luck, this will be an end to such 'brain-dead' moves...
'Brouhaha Over Kazaa Means Nada' - more on the Kazaa litigation
David Starkoff responded to my call for links to reporting on the Kazaa litigation, with this story on Wired amusingly titled ' Brouhaha Over Kazaa Means Nada '. David also points out that the Fin Review over the weekend had a story too (page 4) (not available online). (for more links, see my post below)
The Wired piece is quite good in calling for a little perspective:
'The explosion in the popularity of BitTorrent and other peer-to-peer software has proved the technology is here to stay. Unless the music industry is completely naive, it knows this much.David also points out to me that the Kazaa litigation is not the only one where the meaning of 'communication to the public' is being considered. Justice Tamberlin, in the mp3sforfree.net litigation, apparently also heard arguments in February about whether posting a link to a copyright-infringing MP3 is (a) authorisation, or (b) communicating that MP3 to the public.
It also surely knows that in the grand scheme of things, Kazaa is unimportant software, and Australia is an unimportant jurisdiction. A ruling of interest to cyberlaw boffins and technologists won't force the U.S. attorney general to call an emergency meeting. Regardless of the outcome in the Sharman trial, little will change on U.S. shores, and even less will change on a global scale. It's almost certain the losing side will appeal, and the whole thing will drag out for another year.
Bigger issues are at play. Technology is inextricably linked to progress, and progress is seldom reversed. In the end, the people decide; hot showers will stay hot, computers will continue to sit where typewriters did, cars will be driven by engines and not horses, and peer-to-peer networks will operate as long as people want to use them. ...
The well-paid lawyers, the only guaranteed winners in the Sharman action, are finished arguing before Wilcox. But it's worth remembering that technology has a habit of winning in the end, and an adverse finding against a bit player in a backwater jurisdiction won't kill peer-to-peer. '
I'm very glad that Tamberlin J has these issues in hand too. I've always thought that he was a smart, careful, straightforward kind of judge. Between him and Wilcox - one of the most experienced judges on the Federal Court bench - we're pretty much guaranteed some careful reasoning.
What does all this mean? Well, despite being an unimportant jurisdiction, we are going to have some jurisprudentially interesting, and (to copyright and cyberlaw geeks everywhere) important judgments in the very near future, at least at the single judge level. With any luck (again, speaking as a lawyer and law academic) at least one will go on appeal and we'll get some more views.
It could make all the other copyright debates coming up (on fair use/fair dealing, and on anti-circumvention laws) very, very interesting. The broader the concept of 'communication to the public', the more we are going to need to think about the extent of defences. For example, currently we have defences to copyright infringement for 'reporting news' and for 'criticism and review' (meaning the passing of judgment). IF posting a link is infringement, then what will be needed to show that you are reporting news? Does a blog report news? ....
The latest on orphan works
Over in the United States, the Copyright Office is considering the 'orphan works' issue. As the Copyright Office puts it:
'The Copyright Office seeks to examine the issues raised by “orphan works,” i.e., copyrighted works whose owners are difficult or even impossible to locate. Concerns have been raised that the uncertainty surrounding ownership of such works might needlessly discourage subsequent creators and users from incorporating such works in new creative efforts or making such works available to the public. The Office is now seeking written comments from all interested parties. Specifically, the Office is interested in whether there are compelling concerns raised by orphan works that merit a legislative, regulatory or other solution, and what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders.'Submissions to the Copyright Office's inquiry were due on March 25th, and now some of the submissions are available for more general reading. They make for interesting reading, because a few research centres have gone out of their way to collect information and examples from people who have actually been unable to create certain works, or make available 'lost' copyright material, owing to the extensive copyright term and the inability to find copyright owners. For some of the submissions, see:
- The study of the Centre for the Public Domain, Duke Law School (James Boyle) (pdf)
- The Free Culture Submission (pdf)
- The Public Knowledge Submission (pdf)
The Copyright Office itself will be making submissions available; the ones linked above are ones that organisations have made available independently. No doubt the submissions present one side of the argument, and there will be different views, but watch the Copyright Office site for more information on those.
Reports on the Kazaa Closing Arguments
Well, there's various news reports around about the Kazaa closing arguments, but nothing too in depth that I've found so far. At any rate, here are some links to stories found - see also the comment to the post below, which provides an additional link.
- A story on CTV.ca (reproducing text that seems to be present in a lot of stories that I've read; I'm not sure who it comes from)
- Associated Press Story
- A story by Alex Malik in The Register
More interesting, I think, is the comment that A C Stewart attached to one of my posts, which is worth upgrading to the main page (because lord knows my comments facility ain't the best and doesn't always work well):
'P2P software may still be illegal in the US if Grokster goes ahead.
Anyway it seems fairly obvious that sale, promotion or distribution of a computer program sold on the basis that it can be used to 'share' music without a licence is a method of authorising an infingement.
I think the question will be whether the software without anything further was authorisation to infringe.
To use a lessig argument, architecture regulates behaviour but contrary to the views of lessig that would mean that the creators of kazaa cant avoid the implication that their software is authority to infringe because they made no attempt to regulate the power and use of the program.
There are still a load of conceptual difficulties that are yet to be resolved in this case.
I'd like to take some issue with the first sentence in that comment: that it is 'fairly obvious' that 'sale, promotion or distribution of a computer program sold on the basis that it can be used to share music without a license is a method of authorising an infringement'. I think this statement is, at least on its face, too broad.
After all, people who sell video recorders are selling that equipment 'on the basis that they can be used to copy television programs'. Those copies being, under Australian law, infringements. iPods are sold currently, in Australia, 'on the basis that they can be used to carry around copies of music'. At best, the copies of music on iPods are being made from peoples' CD collections. These copies onto iPods from people's own CDs are copyright infringements. And in the WEA v Hanimex case, audio tapes were sold - and indeed promoted - specifically 'on the basis' that they could be used to make back up copies of purchased audio tapes of Madonna and other known artists - ie on the basis that they could be used to make copyright-infringing copies. Are all of these "authorisations of copyright infringements"? It would seem that Stewart's comments could not be intended to go so far.
I'd also like to take issue with another comment by Stewart, that 'the question will be whether the software without anything further was authorisation to infringe'. If Wilcox J were to go so far, he would be going directly contrary to the Australian authorities and the intentions of Parliament when it enacted the Digital Agenda Act. There can be no way that simply distributing software without anything more can be infringement. There must AT LEAST be knowledge and some capacity for control. (unless I'm misunderstanding you, A C Stewart, in which case feel free to respond!)
The scope of when copyright infringement is 'authorised' is uncertain in Australia. that is why the Kazaa case is important. It seems to be a widely held view that the Australian law is broader than the law in some other jurisdictions. The writers of the leading textbook in the UK - Laddie, Prescott and Vittoria - have criticised the 'broad view' they say was taken by the High Court in the Moorhouse case - that a person authorises another's copyright infringement where they 'sanction, approve, or countenance' that infringement. (Laddie, Prescott and Vittoria, see pp1173-1174), and by the Supreme Court of Canada in a recent decision (see CCH decision, paragraph 40). On the other hand, there are suggestions in the case law that do not go so far: the comments of the High Court in the Tape Manufacturers case, for example, approving cases which have protected equipment suppliers. And the comments of Justice Gummow in the Hanimex case. I don't think the situation in Australian law is at ALL clear cut - which leaves it open to Wilcox J to ensure that copyright law does not go too far in interfering with the activities of suppliers of consumer electronics equipment.
The better view may be (and I do not have a concluded view on this) that authorisation occurs where there is a "grant or a purported grant ... of the right to do the act complained of" (Falcon v Famous Players Film Co, approved by Laddie Prescott & Vittoria). This will not occur in every situation where a person provides equipment for copying to another. I quite like the summary of the Supreme Court of Canada:
' "Authorize" means to "sanction, approve and countenance": Muzak Corp. v. Composers, Authors and Publishers Association of Canada, Ltd., [1953] 2 S.C.R. 182, at p. 193; De Tervagne v. Beloeil (Town), [1993] 3 F.C. 227 (T.D.). Countenance in the context of authorizing copyright infringement must be understood in its strongest dictionary meaning, namely, "[g]ive approval to; sanction, permit; favour, encourage": see The New Shorter Oxford English Dictionary (1993), vol. 1, at p. 526. Authorization is a question of fact that depends on the circumstances of each particular case and can be inferred from acts that are less than direct and positive, including a sufficient degree of indifference: CBS Inc. v. Ames Records & Tapes Ltd., [1981] 2 All E.R. 812 (Ch. D.), at pp. 823-24. However, a person does not authorize infringement by authorizing the mere use of equipment that could be used to infringe copyright. Courts should presume that a person who authorizes an activity does so only so far as it is in accordance with the law: Muzak, supra. This presumption may be rebutted if it is shown that a certain relationship or degree of control existed between the alleged authorizer and the persons who committed the copyright infringement: Muzak, supra; De Tervagne, supra; see also J. S. McKeown, Fox Canadian Law of Copyright and Industrial Designs (4th ed. (loose-leaf)), at p. 21-104, and P. D. Hitchcock, "Home Copying and Authorization" (1983), 67 C.P.R. (2d) 17, at pp. 29-33.'
It would be open for Wilcox J to adopt this view, since it is broadly consistent with the trend of authority on authorisation in a context where people provide equipment to others, and is an elaboration on the 'sanction, countenance and approve' test approved by the High Court in Moorhouse.
Notably, it could still be open to hold Kazaa liable even if a narrow test of authorisation was adopted. It might be that, depending how the facts fall out, Kazaa has gone beyond simply supplying equipment, and has engaged in some kind of more active role in actual infringements. I don't know. I guess we'll know pretty soon how it's all going to pan out.
Finally, my comments in my post below, to which Stewart was responding, were not directed at the question of authorisation. I said that I was expecting some pretty radical claims from the copyright owners in the Kazaa litigation. I was referring, there, to claims (made by Michael Williams in an earlier presentation, at IPSANZ last September) that providers of software, like Kazaa, might be actually communicating works themselves (not just authorising); claims of tortious liability for merely 'inducing' infringement (which would provide whole new vistas for infringement - vistas which they haven't yet managed to pass in US legislation, since the INDUCE Act has been not been passed despite repeated attempts). Not having been present at the hearings this week, I'm unsure how many radical claims have been made in copyright law in Australia by the applicants. Once again, I guess we'll see.
Kazaa news?
Anyone found any reporting on the Kazaa case, where final arguments are being heard yesterday and today in Sydney? Let me know, and I'll put links here for people.
The Record Industry haven't waited long to test the FTA copyright laws.
Here, a story on the Bit Torrent case, apparently being brought in the Federal Magistrates' Court. The judges of the Federal Court must be cross (or perhaps jsut a little jealous) that cool cases on new law and new technology aren't in their courtrooms...
Another google suit
This case, in which AFP is suing Google 'for copyright infringement, alleging that the Internet search engine included AFP headlines, news summaries and photographs published without permission', seems to me to resurrect somewhat that very old US case, in which one news provider sued another for 'stealing' news gathered by the reporters of the plaintiff company. Surely no civilised court is going to stop the business of Internet search engines in their tracks. Surely search engines are not directly competing with news agencies like Agence France-Presse.
Hat tip: Rex.
By the way...
By the way, it's probably worth noting that the final arguments in the Kazaa litigation are being heard next week. This case is a jurisprudential big deal in copyright land.
If talks that Michael Williams (Gilbert & Tobin) gave last year are anything to go by, the applicants in the case will be making all kinds of 'ground-breaking' (read, extraordinarily extensive and extending of copyright law) arguments. It is only to be hoped that Justice Wilcox manages to keep perspective on it all, and that we don't end up being the only country that I know of so far to start holding P2P software illegal.
FREE IPRIA Seminar - Software Patents in Europe - next Tuesday!
Software Patents: Developments in Europe
by Dr Justine Pila
University Lecturer in Intellectual Property Law at the University of Oxford and a Fellow of St Catherine's College, Oxford
Dr Pila will provide a timely discussion of some of the issues surrounding the impending adoption of the Directive and the current European approach to patenting software.
Date: Tuesday 22nd March 2005
Time: 6.00-7.30pm (Refreshments from 5.30pm)
Venue: Room 106, Law School Building, University of Melbourne
More info and registration here.
Copyright Damages judgment
Justice Jacobson has issued a judgment about copyright damages (Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228).
Last October, the judge gave judgment in a case about CDs of DJ mixes, which included copyright works owned by Record Companies. The judge found that the CDs were copyright infringement (for a story about a similar case mid last year, see this ZDNet story).
Sony sought some pretty hefty damages:
- conversion damages under s 116 of the Copyright Act: claiming the full value of the records:
'the applicants submit that they are entitled to recover the full wholesale price, less manufacturing costs, of each compact disc manufactured by the respondents. They say that no allowance or apportionment ought to be made to recognize the fact that the number of non-infringing tracks on each compact disc is greater than the number of infringing tracks. This is because, the applicants contend, that it is not possible, in a legal sense, to sever the infringing tracks so that each compact disc is an infringing article.'
- additional damages under s 115(4) of the Copyright Act: for the flagrancy of the infringements and, in particular, the 'attitude' of the respondents, which extended even to threats against the applicants by SMS (aside: there are some rather nasty SMS exchanges recorded in the judgment, including some language I never expected to see in a judgment!)
- the full value of the record should not be recovered. Instead, the judge basically exercised his discretion and awarded an amount which represented the proportion of infringing material on the CD, but then doubled (to take account of the impossibility of severance)
- significant additional damages were justified by the attitude and threats: $150,000 against Tower Records and $300,000 against Mr Smith (the one who made threats); and
- $50,000 against Mr Ferris, basically because the judge disapproved of his conduct, including his general failure to acknowledge the seriousness of the case and for continuing to work with the primary offenders after overwhelming evidence of copyright infringement became clear.
In addition, the applicants got 40% of the costs they sought - amounting to $205,998.58.
Expensive day for the respondents indeed.
Perhaps the Copyright Law Review Committee Should Read This?
Michael Geist (Canada) has a column on Crown Copyright, currently a subject of review by the CLRC. His own summary of the column:
My weekly Law Bytes column focuses on Canadian crown copyright, which provides that the government retains the copyright associated with any work that is prepared or published by or under its direction, creating an enormous and unconscionable barrier to Canadian film making, political advocacy, and free speech. The column concludes that using government documents and video materials without approval from the Parliament's Speaker of the House should not be a case of civil disobedience. It should be permitted by law.
Facing US Federal Prisons is scary for a guy in Australia...
But that's the case now that Griffiths has lost his appeal to the Full Federal Court from a Federal Court ruling in July 2004 that he could be extradited to the US for criminal copyright infringement. SMH story here.
I have no view on the particular acts that Griffiths has engaged in, but extradition to the US for copyright infringement is a truly frightening prospect - particularly given that their penalties are higher. We can only hope that it doesn't become a habit for the US to seek such removal. Surely Australians can be prosecuted here if there is strong evidence of criminal copyright infringement.
UPDATE: Having read this post again, and having read the case now, I should say that I have little sympathy for the stuff that Griffiths has done, which is straight out illegal, and cannot be justified on any grounds I can think of. IF he has done what it is said he has done, then it is right that he should be prosecuted.
New Federal Court decision on standing to seek removal of a design from the Designs Register
The Federal Court (Goldberg J) has issued an interesting judgment in the case of Lockwood Security Products Pty Ltd v Australian Lock Company Pty Ltd [2005] FCA 203. The case is on whether Lockwood was a 'person aggrieved' - ie had standing - to seek to have a design registered by the Australian Lock Company removed from the Designs Register.
Now, you might think that 'standing to sue' was far from an interesting issue. You would be wrong. The question of just who is allowed to take action to 'clean up' the Register - for example, who can sue to have a patent removed, is pretty important. For example, can public interest organisations ever sue to remove patents that seem to them to have nasty economic effects or be too broad? Should we allow anyone who has sufficient interest to actually file suit to challenge registered property rights, since lord knows most people will never go so far as to actually sue to remove patents or trade marks or designs, leading to plenty of 'bad rights' remaining on the register? But if we do allow anyone to sue, does this just give carte blanche to big scary companies to sue small meek companies and harrass them out of the market? You see, there are policy issues here! Really! After all, the EFF has not long ago had a "patent busting" project, seeking to target what they saw as really evil patents and get them taken out. Since we know plenty of rights are put on the register that shouldn't be granted in various IP areas, issues of who can remove IS important.
Anyway, Goldberg J has issued a judgment that on first thoughts seems pretty right to me. What Lockwood were suing over was to seek removal of the design, not because the monopoly had been wrongly granted (ie, the design was not worthy of protection as being sufficiently new). Instead, Lockwood wanted to remove the design because of how it was being used - they alleged that Australian Lock Company was using the fact of registration in a misleading way (giving consumers the impression that their locks were more secure as a result).
Goldberg therefore found that Lockwood did not have standing. This still leaves room for people to come along and seek to have designs removed where they should not have been granted in the first place - which is a good thing.
ISP raided over use of BitTorrent in Australia (updated 11 March 2005)
This piece of news just in today: according to ZDNet News:
"Australia's music industry piracy investigations unit has raided an Internet service provider in Perth in what it says is the first Australian assault on the use of BitTorrent technology for copyright infringement"That favourite of all our slightly shadowy organisations, Music Industry Piracy Investigations (it has no website that I can find and has been given different descriptions in different government reports and other websites), apparently got an Anton Piller order from the Federal Court and conducted the raid today.
Apparently the investigation that led to the raid focused on 2 websites, Torrent Web pages and Archie's Hub. According to MIPI (the shortened name really does sound so cute), the unit's investigations revealed that the Torrent Web servers hosted a "database of music video files which can be very quickly downloaded, provided the user has BitTorrent software or software or a protocol equivalent to BitTorrent".
More news here, on AustralianIT (with thanks to Robert Chalmers from Adelaide Uni).
More discussion here, particularly of the draconian 'Anton Piller Orders' available in Australia, on Techdirt.
Software patents and balanced reporting
With all the debate going on in blogland at the moment over whether bloggers are entitled, like journalists, to claim confidence in the identity of sources, journalistic approaches and even 'balance' seem the order of the day.
So, in the interests of balance, I have added a link to this post below which noted developments on software patents in issue. The link is to an IPKat post quoting the Campaign for Creativity, which is in favour of such patents.
Victory for traditional knowledge in Europe
GRAIN is reporting that the European Patent Office has upheld a decision to revoke in its entirety a patent on a fungicidal product derived from seeds of the Neem, a tree indigenous to the Indian subcontinent. There is no more famous story in the world of debate about biopiracy than this one. The Neem Tree has been known to have fungicidal properties for many years in India. In fact, the Neem Tree is one of those miracle trees that seems to do everything from protect crops to clean teeth. When I did a bit of a Google, I even found there is a 'Neem Foundation' site, devoted to 'spearheading the Neem Revolution' (!).
When US company Thermo Trilogy filed a patent on a fungicidal product derived from the seeds of the tree, some activists, including Vandana Shiva, a well-known Indian environmentalist, launched an opposition.
Back when I was first researching issues of biopiracy and genetic resources, and the Convention on Biological Diversity, the Neem Tree Story was one of two or three that was in every article or discussion. It's been a bit of a flagbearer (in addition to its teeth-cleaning properties).
Now, the Board of Appeals has held that the patent is gone, in its entirety.
Interesting Times at WIPO
I'm no politics expert, and I'm also no expert on the politics of the World Intellectual Property Organization (WIPO) in particular. But there's a lot of very apparently interesting political moves going on there at the moment.
For one thing, there are three key Agenda items that are going on at the moment, pulling in different directions:
- The Development Agenda: based on the a proposal (pdf) from Argentina for the Establishment of a Development Agenda for WIPO', and adopted in October 2004. Prior to the adoption of this agenda, hundreds of nonprofits, scientists, academics and other individuals signed the 'Geneva Declaration on the Future of WIPO', which expresses a lot of the same general ideas. The general aim is to integrate a 'development dimension' into international IP policy-making;
- The Substantive Patent Law Treaty: the aim of this agenda item is to further harmonise patent law by a treaty that establishes common standards on important elements of patent law - like novelty, inventive step, prior art - things like that.
- The proposed Broadcasting Rights Treaty: the 'next' copyright item - which proposes to give full copyright rights to broadcasters.
There's been a fair bit of criticism about the way that these items are being developed - or at least, how the meetings on these issues are being run - from various NGOs in the last little while. And some of it does look a bit troubling. In short, WIPO is being accused of 'playing dirty'.
In relation to the Development Agenda, according to the EFF, 'World Intellectual Property Organization (WIPO) announced that it will shut out most public interest organizations at two important meetings devoted to intellectual property and development'. Only 'permanent' WIPO observers may attend in addition to country representatives.
In relation to the Substantive Patent Law Treaty, according to a post on Lawmeme, a recent meeting was held to advance the agenda - but invite only, and as far as I can tell, no observers invited either. Just recently, a group of countries issued a statement rejecting the outcome of that meeting. They are protesting 'the use of regional consultations to "divide and conquer" developing country opposition to proposals put forward by the United States, Japan and Europe'. While the idea of 'regional consultations' appears both benign (more detailed discussion) and efficient (consolidation of viewpoints), it appears that developing countries view it as simply a means to fragment opposition and press through opposition.
Similar accusations, regarding the use of regional consultations, have been raised in relation to the proposed Broadcasters' Rights Treaty: see the Lawmeme post on this.
It must be tough being WIPO in the midst of all this. Talk about rock and a hard place, with certain developed countries, particularly the US, wanting to constantly press ahead with stronger laws, and opposition rising. Resist the US and you risk them forum-shifting to somewhere more amenable. Don't resist and you lose all credibility with many of the countries who support a Development Agenda. One thing's for sure. The whole thing has a significant air of the dealings which preceded the signing of TRIPS, as outlined at length in Drahos and Braithwaite's book, Information Feudalism.
For more on WIPO generally, see also:
- IP Australia: Australian Patents and Trade Marks Office - also advise on IP policy, and attend WIPO meetings;
- CPTech: for a civil society perspective.
Interesting News in IP land...
A couple of newsworthy items for today.
First, on the EU software patents directive: the Council has adopted the current text. I have no idea about the procedures that have been followed here, but at any rate, it's been adopted. What that means is that the ball is in the Parliament's court. The EU Parliament has 3 months to reject or accept the text now. For more information, see:
- Copyfight
- Groklaw (this article has LOTS on the procedure)
- ZDNet
- FFII
- Managing Intellectual Property (reg req)
- NoSoftwarePatents.com
- This post on IPKat which quotes the Campaign for Creativity in favour of the directive (in the interests of balance!)
Note that the suits were targeted against people who were sharing, not those who were 'just' downloading.
New Designs judgment out of the Full Federal Court
The judgment is Mining Equipment *Minquip* Pty Ltd v Alfagomma Australia Pty Ltd [2005] FCAFC 25. Designs judgments come out so rarely - let alone Full Federal Court designs judgment, that it has to be worth a post. Mind you, it does look, from a very quick perusal, like the main issues really are issues of onus of proof when alleging invalidity of a registered design. The Full Court have reversed a finding of invalidity of the registered design (the Trial Judge had found that the design had been used prior to the priority date). Infringement issues have been remitted to the trial judge.
Some excerpts from the briefs in Grokster
For past blog posts on Grokster, see here, here, here and here. I've been flicking through some of the coverage on the Grokster briefs in support of the respondent (ie, those which argue to affirm the finding of the 9th Circuit that Grokster was not liable for copyright infringements committed by users of the software). Some things are just worth quoting:
In particular, I think this summary of the argument computer scientists' brief (pdf document here) is worth a quick note:
"Amici write to call to the Court's attention several computer science issues raised by Petitioners [i.e., the movie and music companies] and amici who filed concurrent with Petitioners, and to correct certain of their technical assertions. First, the United States' description of the Internet's design is wrong. P2P networks are not new developments in network design, but rather the design on which the Internet itself is based. Second, a P2P network design, where the work is done by the end user's machine, is preferable to a design which forces work (such as filtering) to be done within the network, because a P2P design can be robust and efficient. Third, because of the difficulty in designing distributed networks, advances in P2P network design -- including BitTorrent and Respondents' [i.e., Grokster's and Streamcast's] software -- are crucial to developing the next generation of P2P networks, such as the NSF-funded IRIS Project. Fourth, Petitioners' assertion that filtering software will work fails to consider that users cannot be forced to install the filter, filtering software is unproven or that users will find other ways to defeat the filter. Finally, while Petitioners state that infringers' anonymity makes legal action difficult, the truth is that Petitioners can obtain IP addresses easily and have filed lawsuits against more than 8,400 alleged infringers. Because Petitioners seek a remedy that will hobble advances in technology, while they have other means to obtain relief for infringement, amici ask the Court to affirm the judgment below.
For more coverage of the various Grokster briefs, see:
- This story on the brief filed by Intel (supporting the respondents)
- This story on the brief filed by leading scientists
- This story on the brief filed by the electronics industry
- This story on the brief filed by musicians
happy reading!
Peter Suber's Open Access News
Peter Suber's new bulletin on open access news has been published, here. This remarkable newsletter is the authoritative source on developments worldwide in open access. What's open access literature? As Suber puts it:
"Open-access (OA) literature is digital, online, free of charge, and free of most copyright and licensing restrictions"Or, as the Budapest Open Access Initiative puts it,
"There are many degrees and kinds of wider and easier access to this literature. By 'open access' to this literature, we mean its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited."In other words, we are talking about the availability of literature - especially academic literature - freely online (the alternative being what Suber calls "Toll Access" - the usual scholarly publications and scholarly literature produced by academics and published in scholarly journals which charge for access).
Peter Suber's current newsletter has a very detailed consideration of the final policy issued in relation to open access by the National Institutes of Health in the US. The NIH is trying to encourage publication of NIH-funded research in open access repositories, specifically one called PubMed Central. The policy essentially provides for voluntary deposit of publications arising out of NIH-funded research, preferably within 12 months of publication. As Suber points out, it would have been better to require deposit, since the voluntary mode could lead to academics being 'between a rock and a hard place' - facing conflicting demands of their publisher and their funder.
The newsletter also has some Suber thoughts on the co-existence of open access and traditional publishing.
Worth a read!
New Trade Mark Links Online
I'm teaching trade mark law this semester, so for the benefit of my students, have collected a set of links to trade mark treaties, organisations domestic and international dealing with trade mark, IP news sites and some IP blogs. Feel free to browse! The website is here. Suggestions for further links always welcome. There's another page, where I put links to materials relevant to topics we're covering in class; it's basically for students but might be of interest to other people working or researching in the area. The further materials page is here.
Patent Construction and the relevance of the Patent Office File
In a judgment given by Justice Tamberlin this week, Baygol Pty Ltd v Foamex Polystyrene Pty Ltd [2005] FCA 145 his Honour has refused the tender of a Patent Office file, which the tenderer had submitted was relevant to the construction of an integer in the patent. His honour refused the tender, on the grounds that:
"the Patent Office file should not be admitted in evidence in the present case in aid of construction of the integer under consideration. There is, as Lord Hoffman points out, the cogent practical consideration that to admit the file and thereby open up an investigation into all the circumstances could lead to a range of collateral and irrelevant questions and circumstances. The essential question in this matter is the meaning of the language used and that does not depend on whether the person skilled in the art looks at the file or investigates all the circumstances and negotiations that surround the amendment and their relative comparative importance."This would seem to be a good thing to me - it is better that these issues are addressed anew, to avoid situations where patentees and opponents have to be inhibited during the course of examination and grant, for fear of later litigation. At a recent IPRIA seminar in Sydney, US lawyers criticised the system in the US where amendments during the patent prosecution process prevented later arguments about construing the patents, and outlined all the torturous ways lawyers were seeking to avoid this problem. Better that we don't have that situation here in Australia!
New developments in MGM v Grokster case
I've blogged repeatedly about the MGM v Grokster case - the case in the US Supreme Court about whether suppliers of P2P software can be held liable for copyright infringement. It is the case that is - not equivalent, but definitely related - to our Kazaa litigation (suit against Sharman in Australia alleging everything from copyright infringement to lord knows what). A judgment from the 9th Circuit which held that Grokster was not liable has been appealed by the copyright owners.
See my old Grokster posts for more background here.
The new news is that the amicus briefs supporting Grokster - ie supporting the P2P developers - were due yesterday. EFF has links to the briefs on its website, here. There are, among others:
- a brief from computer scientists
- a brief from Venture Capitalists
- a brief from Creative Commons
- a brief from some Internet Law professors - Zittrain, W Fisher III and John Palfrey
There's also some neutral briefs. (and a whole heap supporting the appellants, ie against the P2P developers). They are all usefully collected on EFF's site. Happy reading.
EU Software Patents - Commission won't restart
It is being reported that the EU has refused to 'restart' the process for drafting the Software Patents Directive. The Commission has reportedly rejected the request for a restart by the EU Parliament, despite four national parliaments (Spain, the Netherlands, Germany and Denmark) officially calling on their respective governments to change the directive by means of a restart, and after several governments refused to back the current proposed directive.
This seems very strange to me. How can it be that the Commission and the Parliament can be so at odds that the Commission decides to refuse such a strong rejection of the current approach? It just shows how little I understand EU politics and the EU political structure, I guess.
Some sources on this news:
- Groklaw article
- FFI Press release
- Nosoftwarepatents.com press release
- Sorry, no press release or news from the relevant DG (Internal Market) in Europe
- Copyfight post
Hair-raising injunctions in the Federal Court...
You can't help but think that, just perhaps, Hely J had a bit of fun hearing this case and writing the judgment.
Energiser (who sell Schick razors) sought an injunction against Gillette, in relation to Gillette's advertising and launch of the "M3" razor. The special thing about this razor, is a battery-operated mechanism claimed to have two effects:
- the "hair raising effect" - that the razor emits micro-pulses which have the effect of causing the facial hairs to stand up vertically for better shaving; and
- the "hair extension effect" - an alleged increase in the observable length of beard hairs which is said to be triggered by micro-pulses produced by an oscillating razor (!!!)
Energizer sought an injunction on the basis that the claims made in advertisements were misleading and deceptive. For the moment, they have their injunction.
Proof that the Men's Razor market is nothing if not aggressive.
