Banning Laptops from Law School classrooms.

This one's for my academic and student readers. Orin Kerr has recently started his own weblog. He's an expert particularly in issues of electronic search, discovery and surveillance, and has been blogging in an interesting, and thoughtful way for some time at other blogs.

One discussion over at the blog right now I find interesting: it's about a law professor in the US who has instituted a 'lap top ban' for her classes, in the belief that they detract from the learning/pedagogical experience. Kerr has a full explanation from the Law Prof of the policy, and a long, interesting comment thread with some academics but many, many students chiming in on their views of the policy and the role of laptops in law school classrooms.

I have some sympathy with the Professor: she is right that the 'wall of laptops' can sometimes be dispiriting for an academic, and there is no doubt that some students do 'hide' behind their laptops to avoid being called on, or engaging with the subject matter in the classroom. That said, Daniel Solove's view is similar to mind: I don't think it's possible to force that view on students, or 'fix' the issue with a ban. Students have to make their own decisions on what will assist, or not assist their learning experience. And laptops sometimes contribute to discussion - I've had students who pull up legislation, or information online and contribute it to the discussion. Many students with laptops are just as engaged as those without. Mike Madison also has some interesting points to make.

That said, I've often wondered about the possibility of taking 'moments' in class - where you want the students to focus on solving a particular problem, or to think about the application - of asking students to put their screens down for some limited period. In the right circumstances, it could work. But I've not tried it yet.

 
CAL v the Schools - update

A little while ago I blogged about a case - and more particularly an argument - that is currently before the Copyright Tribunal. The case concerns the fees schools should pay for digital uses of copyright material; the argument concerns whether 'telling students to view' a website should ever be a remunerable act. Reports of the case had elicited a fair bit of commentary overseas. My own post elicited quite a lot of email.

The case itself has gone 'underground' a little - no new developments to be reported at this stage. But I did want to note a letter to The Australian newspaper, written by CAL CEO Michael Fraser about the case. I can't find the letter online, so I'll quote some of the key parts:

'In both hardcopy and digital worlds there are creators who provide material for free, including for educational purposes.

So let's get one thing clear: we do not and would not expect schools or any users to pay for freely available materials.

But the fact is there are copyright owners who wish to make a living from their works.

Copyright Agency Limited, as a collection agency, plays a crucial role in facilitating this by passing on royalties obtained from licence fees to those who wish to be paid, for example, when their work is used for commercial purposes or as an educational tool.

Surveys, such as the one run in schools, allow us to see what is being used so a fair licence fee can be set and we can identify and pay the copyright owners that wish to be paid for their work.

All CAL is asking for is an accurate snapshot of what's happening in schools today by expanding the survey system to include all uses of digital materials, including uses directed by a teacher.

This information will help the independent Copyright Tribunal to make a just assessment about whether the actions involving digital copyright-protected materials in schools should lead to payment to the copyright owner. ' (emphasis added)

I'm very glad to hear that CAL has never, and will never expect schools, or anyone else to pay for freely available materials. That is, of course, the right position to take as a matter of general copyright law and policy. I'm glad to see that CAL have gone on the record about that position. Well done CAL!

 
Kazaa Contempt Judgment (updated and updated again 15 April 2006)

[update 15 April 2006: if you've not read the comments on this post, I suggest you do. There are a couple of very incisive, interesting comments there!!! Thanks people.]

Coverage today of a judgment, handed down yesterday, in the Kazaa proceedings. For those who joined us late (are there any of you?), Kazaa (P2P Software provider) has been sued for authorising infringement of copyright by users of the P2P file-sharing software. Justice Wilcox handed down judgment last year, holding they were liable for authorisation, and an appeal from that judgment was heard in early February. Judgment in the appeal is reserved.

The contempt proceedings are a concurrent, separate issue from the main matters at issue in the appeal.

At the time that Wilcox J handed down judgment, he made a rather interesting set of orders. The judge made various declarations, finding there was authorisation of infringement, but of particular interest were the orders about what Kazaa had to do about it. Justice Wilcox ordered:

4. The infringing respondents be restrained, by themselves, their servants or agents, from authorising Kazaa users to do in Australia any of the infringing acts, in relation to any sound recording of which any of the applicants is the copyright owner, without the licence of the relevant copyright owner.

So this is the main order: Kazaa must stop authorising infringement of copyright. Note the generality of this order. Any change of behaviour by Sharman would have to be assessed against the criteria of whether it constituted an authorisation or not. Such orders are not uncommon in IP cases, although there are plenty of statements in various cases about their undesirability. To avoid a conclusion that Sharman had to shut down, Wilcox made another, even more interesting order:

5. Continuation of the Kazaa Internet file-sharing system (including the provision of software programs to new users) shall not be regarded as a contravention of order 4 if that system is first modified pursuant to a protocol, to be agreed between the infringing respondents and the applicants, or to be approved by the Court, that ensures either of the following situations:
(i): that:
(a) the software program received by all new users of the Kazaa file-sharing system contains non-optional key word filter technology that excludes from the displayed blue file search results all works identified (by titles, composers’ or performers’ names or otherwise) in such lists of their copyright works as may be provided, and periodically updated, by any of the applicants; and
(b) all future versions of the Kazaa file-sharing system contain the said non-optional key word filter technology; and
(c) maximum pressure is placed on existing users, by the use of dialogue boxes on the Kazaa website, to upgrade their existing Kazaa software program to a new version of the program containing the said non-optional key word filter technology; or
(ii) that the TopSearch component of the Kazaa system will provide, in answer to a request for a work identified in any such list, search results that are limited to licensed works and warnings against copyright infringement and that will exclude provision of a copy of any such identified work.

So Wilcox provided an 'out' - you are not infringing if either you put in place Filtering Type A (keyword/filename filtering) and take heavy steps to ensure existing users upgraded to that type of filtering, or Filtering Type B (polluting search results with copyright warnings) which will affect all searches. But note that the order leaves open what happens if Sharman/Kazaa do something else to remove or reduce authorisation of infringement.

Note something else about these orders. As Ed Felten noted at the time these orders were made, Order 5 is quite specific - filters must be used, but they need not be effective to comply with Order 4. What's not clear is this: if the respondent does something else (ie, not Filtering Type A or B) to try to comply with order 4, how effective do those steps have to be?

These orders generated a fair bit of commentary at the time: I called them 'brave', Starkoff thought they were pretty thoughtful, Ed Felten made some very thoughtful comments on the technological feasibility of the order as well. For more commentary at the time, see this post where I collected links. They were controversial, and difficult orders because, as is obvious from a reading of them, Wilcox J was ordering changes to the technology: controversial for a judge at the best of times.

A further interesting thing about the case was that Justice Wilcox specifically chose not to suspend these particular orders pending the appeal. That is, he ordered Kazaa to take steps despite the fact that there was a pending appeal on liability (quite often, injunctions will be suspended while an appeal is pending, but Wilcox J, perhaps not surprisingly, took the view that the ongoing damage was too great to do that). All this on a punishing appeal schedule that saw hearing in February after a September judgment (a quick timetable indeed, particularly for an appeal hearing that went for 5 days).

Sharman/Kazaa were meant to do something by 5 December 2005. Kazaa did not put in filtering into its software, as required by the order. Instead, Kazaa opted to prevent downloads of its file-sharing software in Australia. From the night of Monday, 5 December, Australian users of the site were greeted with the message: "The download of the Kazaa Media Desktop by users in Australia is not permitted".

On 9 December, the copyright owners filed a notice of motion, seeking punishment for contempt of court: that is, seeking punishment for Sharman's failure to comply with the court's order. Contempt can carry fines, or even jail time. The contempt matter was listed for hearing on 30 January 2006. On that day, Wilcox J heard debate on the matter, and reserved a question of law for the Full Federal Court. The question was:

'Whether, having regard to the nature and terms of order 4 made on 5 September 2005, a determination of contempt of court may be made in respect of the contraventions of that order alleged in the statement of charge filed on 9 December 2005.'

The main argument raised by Sharman et al was that Order 4 (quoted above) was 'so ambiguous that it is devoid of any legal meaning and incapable of giving rise to liability on a charge of contempt'.

Judgment on the question of law was handed down by Branson J yesterday. The Full Court (in the absence of facts about the alleged contempt of course) has said that Order 4 is NOT so ambiguous that it is devoid of any legal meaning. As the Full Court pointed out, there are circumstances where this order is plenty certain. If Sharman had just sat down and said, well, we will pay no regard to this order - then that's pretty clear contempt, and the order is clear. I think the Full Federal Court are probably right on this question of law.

So the matter must go to hearing.

But let me tell you, this hearing could be really, really interesting. Let's assume, for the moment, that the facts outlined above, as reported in the media, are accurate. I have no idea of the full extent of facts, of course. But let's assume that this is what happened:

• Judge makes order saying - 'you must not authorise infringement'. He then says 'you will not be authorising infringement if you put in Filtering Type A or Filtering Type B. Note that both these Acts are aimed at preventing new users from infringing - but are also aimed at preventing existing users from infringing (or at least, reducing infringement by existing users).
• Respondent (Sharman) doesn't do Filtering Type A, or B. Instead it does Act C - blocking downloads. That helps to prevent new users from infringing but of course does nothing about existing users (it may eventually drive them away because they won't get upgrades to software of course, but that's a long term kind of effect).

Now clearly, in this scenario, Sharman/Kazaa are engaging in one, big game of legal chicken. They've taken a risk that what they've done, less onerous and difficult as it is, will not be contempt. But whether it is contempt is not answered by the Full Federal Court's judgment. They had to make a decision in the absence of full facts about the alleged contempt.

There seems little doubt that the respondent is entitled to do something other than the filtering envisaged in Order 5, to try to comply with Order 4. But what is not clear is this:

1. Does Sharman cease to authorise infringement of copyright by blocking downloads of the software to Australia?
2. Does the answer to question (1) depend on how effective the blocking is in preventing future infringements?
3. How would you prove contempt in such a case? Could the contempt hearing have to involve a whole lot of evidence about how effective the blocking is?
4. Can any of this really be proved beyond reasonable doubt, as required in a charge of contempt?

And note: the answers to these questions - particularly question 1 - are very much dependent on what counts as authorisation. And of course guess what - that is the very matter that is on appeal.

Ick!

The Full Court were conscious of this. The leading judgment of Branson J discusses (paragraphs 40 - 49) the danger of granting injunctions in form that reproduces the statutory prohibition - but accept that authority does not prohibit such injunctions, particularly in IP cases and particularly in cases where the respondent has shown tendencies to be dishonest or untrustworthy (the Full Court make no comments on whether that is the case here). Branson J also discusses the problem that the questions raised in the contempt hearing are the same questions as are being raised in the appeal - noting that there can still be contempt for acts that occur between trial judgment and appeal. But no resolution is offered - and probably can't be, until the facts of the alleged contempt are established.

Think about it some more. All of this has been happening on a real fast timetable. Sharman had 3 months, basically, between the judgment and the December date, to put in place some kind of filtering technology. 3 months is not all that long. Remember too that at the same time they are drafting the appeal documents, and preparing for an appeal that will be heard a bare 5 months after the trial judgment, and is a complicated appeal (5 days' worth). Can it be contempt if you take some steps, although not fully effective and not going as far as the judge wanted? Is this sharp timetable relevant?

The confluence of judgments, actions, and issues is getting very messy here. This is a massive, highly contentious case. It is at least conceivable that we could get a judgment that says there IS contempt, being handed down around the same time as an appeal judgment gets handed down saying there was no authorisation. What then?

I can't help but wonder whether it might not have been better to simply stay the orders, given the rapid appeal. I completely understand why it was not, but given all the technological complexity, the contentiousness between the parties (remember that putting filtering in place does require cooperation between the parties), in the event it's only given rise to some very nasty legal complications.

Thoughts?

Update: This comment, from Edward Sexton, deserves to be elevated from my crappy comments facility to the main page:

'I find the Wilcox orders impressive. I suspect that the guidance in order 5 was intended to sit with order 4. Order 5 is capable of contempt, and that hearing will be heavily laden with evidence of effectiveness. It will get messy, revealing the pointy end of Konrad West's comment above - that if in my view the orders are impressive, they are also a stretch from the bench. But this case will really hit its finest form when, I anticipate, the contempt cannot be proven by the over-agressive plaintiffs, but the over-evasive defendants are dealt with from the appeal bench with a thorough endorsement of the authorisation finding, and, in the context of their attempt to sidestep the trial judge's orders, timetable or no, are sent back to Wilcox J for a sound earful on how it's important to treat Court orders with sincerity, and what a shame they didn't, and what a shame he must order a sound eyeful of damages, including a good account for this sly interim period.'

 
That's it, I'm never ordering a flat white again.

According to The Age:

'a flat white is the equivalent of an instant coffee with milk'

Wow. serious lack of credibility. I can't order a cappuccino either:

'The elderly drink the cappuccinos '

Guess I'm stuck with lattes and macchiatos.

 
Three random thoughts on the power of the word

I'm thinking a lot about the power of the written, and spoken word today for some reason. Here are two, brief thoughts:

1. This morning I introduced myself to the new visitor on my floor of the law building. He turned out to be a US judge, who is teaching a course in the Melb LLM on effective written advocacy. He has judges coming in as guests in his course. What a fantastic idea. Sometimes, my law school really does rock. More people should study how to write, convincingly and persuasively.
2. And along related lines: via Andrew Leigh: a speech by Michael Fullilove, of the Lowy Institute, on speech-making in foreign policy. On why speech-making is important.

 
Oh, and yes, the Blackberry suit settled.

I've nothing to add to the many intelligent comments out there on the Blackberry dispute and its settlement. The consensus appears to be - 'well, about time' - although that's kind of interesting given the patents are in re-examination. If you are interested though, I would refer you to:

• My colleague Ben's comments over at LawFont
• My colleague Joshua Gans' comments at CoreEcon (on whether there is such a thing as a patent troll)
• And one of my favourite patent law blogs: Patently-O (written by a man who looks disturbingly like Australian comedian Peter Berner minus 15 years).

 
The Adelphi Charter Launched

Something I should have noted last week: the Adelphi Charter was launched in Australia, at an event organised by AEShareNet. To quote from the Charter website:

'The Adelphi Charter was prepared by an International Commission of experts from the arts, creative industries, human rights, law, economics, science, R&D, technology, the public sector and education.
The Charter Office is based at the Royal Society of Arts in London which is concerned with innovation in the arts, sciences and industry.'

The Charter, which was formally launched worldwide in October 2005, is really a simple bunch of principles, that sound a lot like common sense - unless you've been in the IP debate for a while, in which case it sounds like a foreign language, so far is it from the ordinary parlance. In a way, the Charter advocates a return to simple, important principles in an area that far too often descends immediately to an unhealthy level of detail and qualification. You can see a 'January 2006' report here.

The principles of the Charter are worth quoting in full:

1. Laws regulating intellectual property must serve as means of achieving creative, social and economic ends and not as ends in themselves.
2. These laws and regulations must serve, and never overturn, the basic human rights to health, education, employment and cultural life.
3. The public interest requires a balance between the public domain and private rights. It also requires a balance between the free competition that is essential for economic vitality and the monopoly rights granted by intellectual property laws.
4. Intellectual property protection must not be extended to abstract ideas, facts or data.
5. Patents must not be extended over mathematical models, scientific theories, computer code, methods for teaching, business processes, methods of medical diagnosis, therapy or surgery.
6. Copyright and patents must be limited in time and their terms must not extend beyond what is proportionate and necessary.
7. Government must facilitate a wide range of policies to stimulate access and innovation, including non-proprietary models such as open source software licensing and open access to scientific literature.
8. Intellectual property laws must take account of developing countries' social and economic circumstances.
9. In making decisions about intellectual property law, governments should adhere to these rules:
   * There must be an automatic presumption against creating new areas of intellectual property protection, extending existing privileges or extending the duration of rights.
   * The burden of proof in such cases must lie on the advocates of change.
   * Change must be allowed only if a rigorous analysis clearly demonstrates that it will promote people's basic rights and economic well-being.
   * Throughout, there should be wide public consultation and a comprehensive, objective and transparent assessment of public benefits and detriments.

I think people would do well to pay attention to these principles.

 
Blog of interest

If you've not already discovered Concurring Opinions, you should. It's one of the more thoughtful and ever-interesting US legal blogs. And here's another reason to visit - my old co-author, and Yale colleague, Professor Frank Pasquale, is going to be guest blogging. Head on over.

 
Looking for stuff on the TPM Inquiry?

Here's some links to my commentary on the Report so far:

1. Click here for today's post
2. Click here for yesterday's post. (this one has my links to everyone else's commentary too)

Enjoy!

 
Shutting off the Internet in Australian Schools? Surely Not (updated to clarify, Monday 6 March 5:30pm)

The Internet and blogosphere have been rife, just recently, with a story that first emerged in The Australian. The story went under the headline: ‘Copyright makes web a turn-off’, and came with this as the rather glorious (and alarmist!) first paragraph:

‘Schools have warned they will have to turn off the internet if a move by the nation's copyright collection society forces them to pay a fee every time a teacher instructs students to browse a website’

What on earth could be going on? Well, I admit it, I’ve been hearing about this for some time, and I really should have blogged it before now. But following comments (and ‘please explains’) from both Michael Geist, and Michael Madison, some commentary on Boing Boing, and by Warwick Rothnie, and the emergence of the story on the Linux Australia listservs, it’s definitely time to weigh in.

Is such a radical argument being made? Oh, yes. The Copyright Agency Limited (CAL), an Australian collecting society isn’t demanding that schools ‘turn off the internet’. But they ARE demanding that schools pay when students are told to look at stuff. claiming that when students are told to look at sites online, that is a remunerable activity, and hence something that should be included in calculating rates that schools pay under the statutory license. The argument is a step in the more immediate question, which relates to what questions are to be put on an electronic use survey. [updated to clarify - Monday, 6 March 2006, 5:30pm]

Will CAL's argument succeed? No. In my view, pigs are merrily flying by the window of the court or tribunal that would uphold this argument. Not a single person I have run this argument by – not a single one, and I’ve run it by a lot of people who are experts in Australian IP law – think it will – or should - succeed. These arguments are so contrary to the ordinary meaning of the words used in the Act, so contrary to the intentions of the Digital Agenda Amendments, so contrary to the framework of the Act, so contrary to the views of the commentators, and so inconsistent with such caselaw as exists, that they should be rejected, out of hand.

What I particularly don’t get is this: why make the argument? Let’s call it like it is. Boiled down to basics, the argument says that schools should pay for telling students to view stuff that is available, to be freely viewed, on websites. Like the Age newspaper. Like the NASA website. Let's think through the logic of this one:

1. Copyright owner puts stuff online, knowing people will, shock horror, probably look at it.


2. Copyright owner knows that people looking at the stuff online will not pay. Presumably, then, copyright owners being rational human beings and all, they have done cost/benefit analysis and decided that, despite inability to charge for stuff online, it is still worth putting it up.


3. Statutory license is created in Australian law to make sure that copyright owners don't lose out when schools copy stuff for their educational purposes.


4. Statutory license should include stuff online, so that copyright owners get paid for ... um ... uses of the material they were not expecting to get paid for.

Nope, I don't get it. Please, someone, tell me what I'm missing here. Because if I could see a reason why copyright owners were suffering as a result of teachers telling their students to view material online, I would perhaps be more inclined to be sympathetic. But I'd be grateful if anyone could enlighten me how there is any loss to copyright owners here.

I also don't think that the government ever intended such a result - that schools would pay for telling people to look at stuff. Why, I elaborate below.

This kind of argument does, I admit, make me a bit cranky. I believe in copyright. I believe authors do deserve to be paid for their creations, and investors in creativity deserve to be paid, assuming they want to be. And this kind of argument makes me really cranky because it gives copyright a bad name. To quote Jane Ginsburg:

‘I have a theory about how copyright got a bad name for itself, and I can summarize it in one word: Greed.

Corporate greed and consumer greed. Copyright owners, generally perceived to be large, impersonal and unlovable corporations (the human creators and interpreters--authors and performers--albeit often initial copyright owners, tend to vanish from polemical view), have eyed enhanced prospects for global earnings in an increasingly international copyright market. Accordingly, they have urged and obtained ever more protective legislation, that extends the term of copyright and interferes with the development and dissemination of consumer-friendly copying technologies.’ (Jane Ginsburg, ‘How Copyright Got a Bad Name For Itself’ (2002) 26 Colum. J.L. & Arts 61)

Both users, and copyright owners can be greedy sometimes in the way they make arguments. The debate tends towards a pitched battle at times. In the context of the whole file-sharing thing, I think that quite often, users do get greedy, thinking they should be able to do anything. Wrong. But in this case, I think, it happens to be a copyright interest. And we do here have a broad, unreasonable, ambit argument - and I do think that when that happens, it does damage the credibility of the copyright cause. I think we can see that in the way that the press and blogosphere has reacted. And that makes me cross, because it makes things harder for everyone who believes that the basic system of copyright is a good idea.

Now, CAL may be concerned that where, in the past, teachers have photocopied, say, newspaper articles to give to students, now they are telling them to go look at those articles themselves. In the past, the photocopying was necessary, because students might not otherwise be able to see the article (you know, Dad took the newspaper to the office, or my parents don’t get newspapers). Now, with stuff staying online longer, that has become less necessary. So, presumably, there is a chance that telling students to view stuff might cause the amount of copying in schools to decrease over time. But if so, that's a matter for the copyright owners, not CAL. And the copyright owners speak by putting the stuff online.

Should the government step in? Now there’s an interesting question. The situation at the moment, as far as I know, is that the argument is being made in a case before the Copyright Tribunal. An application is being mooted that the question (as a legal question) could be referred to the Full Federal Court for determination. Should this have to happen? No. It involves frankly wasted legal costs.

OK. That's the broad commentary on the argument. Despite my views, and those of everyone I’ve told about this argument, the fact remains, the argument is being seriously pursued by CAL, who are represented by two leading counsel. So I want to elaborate just why I do not believe this argument will succeed. What follows, of course, is just my opinion. Hell, I could be wrong. But let me put out the thoughts, anyway, on the understanding that it is, just, opinion.

I should also note something else: I'm just commenting here on one argument I've been told out in the case. It does not represent CAL's entire argument, as I understand things. And since the proceedings are at a pretty early point, much could happen from here.

To do so, I'm going to have to get legal. Really, desperately, technically legal. If you're not that way inclined, you may find the rest of this post hardgoing. Forgive me. You may not need to read the rest. Click here for the next post on the blog.

What the? (A legal primer/background to the case)

Schools use copyright material in Australia under a statutory license (Pt VB of the Act). They pay a yearly fee, usually determined on a per student or per page basis, for copying copyright material, and for communicating copyright material to ‘the public’. (Two of the exclusive rights of the copyright owner in Australia are the right to copy, and the right to communicate to the public. The statutory license allows schools to do this as much as they like, so long as equitable remuneration is paid to copyright owners. Remember, that Australia has no fair use defence). The system (at least for literary/artistic works) is administered by the Copyright Agency Limited. The Copyright Tribunal sets rates, and surveys are done to see what copying is happening. There is a current dispute between CAL and the Schools of Australia, regarding the rates appropriate for electronic copying/communication/use. In that context, CAL is saying that one things that should be included in the 'survey' used for sampling - to see how much is going on - is when teachers 'Tell Students to View' material online. The Schools say this shouldn't be on the questionnaire. CAL apparently have several arguments as to why it should be. But the one that is generating all the heat and light right now is this one: that when students view something online, a remunerable act occurs.

But wait a minute. How can it possibly be argued that schools should pay in this situation? Schools pay for their of copying or communicating a work, for their educational purposes. If a student clicks on a link, or goes to a site, how is the school doing any copying? Or communicating to the public? CAL’s argument is that when a student clicks on a link they have been told to view, or types in the URL, that student is communicating the work to the public – because they are electronically transmitting the material to themselves, and they are the ‘copyright owner’s public’.

Why the argument won’t succeed

So much for the background context. Now I want to think about just why this argument is unconvincing. Just to remind you, the argument is as follows:

When a student clicks on a hyperlink, or types a URL into their browser window, they are communicating the work to themselves, that they are doing so on behalf of the school, and that communication is to the public – because the student is the copyright owner’s public.

Now, I don’t know about you, but when I think about ‘communication to the public’, I figure we’re talking about things like:

1. Putting stuff on a website, or


2. Broadcasting stuff or


3. Beaming something to all the employees of a company

You know, stuff that looks like, well, communicating. To the public and all. Kind of like broadcasting, or at least vaguely analogous activities. But can the student, who clicks on a link, be said to be ‘communicating’? Or are they just receiving a communication? ‘Communicate to the public’ is defined in section 10 of the Act, to mean:

‘make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter, including a performance or live performance within the meaning of this Act.’

Under this definition, there are two possible acts. One is putting stuff up on a website. Students aren’t doing that, obviously. The other is ‘transmitting’. As a matter of common sense, you would think that ‘transmit’ meant ‘send out’, right? Like broadcasting. In fact, if you look at the dictionary, that’s what it says too. The Oxford English Dictionary (online version) offers the following meanings for ‘transmit’:

‘To cause (a thing) to pass, go, or be conveyed to another person, place, or thing; to send across an intervening space; to convey, transfer;
To convey or communicate (usually something immaterial) to another or others; to pass on, esp. by inheritance or heredity; to hand down
To send out electric signals or electromagnetic waves corresponding to (an image, a programme, etc.).’

Don’t know about you, but most of these meanings seem to indicate that something is transmitted from A to B, and it is A, not B, which does the transmitting. Of course, this is consistent with the dictionary definition of ‘communicate’:

To give to another as a partaker; to give a share of; to impart, confer, transmit (something intangible or abstract, as light, heat, motion, a quality, feeling, etc.)
To impart (information, knowledge, or the like); to impart or convey the knowledge of, inform a person of, tell.

Again, sounds to me like the thrust of these definitions is that communication passes from A, to B – and A is communicating, not B. So how could CAL make the argument? Well, they would say that you have to look at the deeming provision. You see, the Act also has a provision that dictates who is held responsible for a communication. Section 22(6) says that:

‘For the purposes of this Act a communication other than a broadcast is taken to have been made by the person responsible for determining the content of the communication’

Now, again, common sense would say that the person ‘responsible for determining the content of the communication’ would be the person who provided the content. Put it on the website to be communicated. Put in the pretty pictures. Wrote the text (or paid someone to write it). Chose the content to be put up.

But ah-hah! No! Perhaps it is the student who ‘is responsible for determining the content of the communication’, because it is the student who selects what they are going to view. Never mind that the student hasn’t seen what they are about to view. Never mind that in most cases, unless the student is a prophet (and students’ exam results would tend to indicate otherwise) immediately prior to receiving the website they couldn’t tell you much about what they were about to view. How about using the dictionary again? Let’s look at that word ‘responsible’ for a moment. The Oxford English Dictionary offers us this definition:

'Answerable, accountable (to another for something); liable to be called to account’

I’m having a lot of trouble imagining the student being ‘accountable’, or ‘answerable’ for determining the content of a communication. Imagine student clicks on a link, which, unbeknownst to them, happens to contain ‘forbidden material’. Let’s say the website turns out to have banned material. The student doesn’t know; they haven’t seen it. Would we hold them accountable? Or would we blame the creator/host of the website? I know who I’d be choosing to hold ‘accountable’. (Should the teacher be responsible for referring students to the link? Yes, but for the reference, not for the content of the site).

In summary: I think it’s pretty clear that the argument is just unsupportable as a matter of common sense and the ordinary meanings of words. But after all, common sense isn’t always a good guide to copyright law in a country where taping tv to watch later is still an infringement. So let’s look at a few more indicators.

The legislative history says the argument won’t succeed

Let’s have a look at the legislative history. Thelegislative history says several times that browsing the Internet will not be an infringement:

1. Explanatory memorandum (original), paragraph 63, noting that an exception in s 43A is intended to ensure that ‘browsing (or simply viewing) of copyright material’ is not infringement; so that ‘the technical processes which form the basis of the operation of new technologies such as the Internet are not jeopardised’


2. Explanatory memorandum (revised), paragraph 69 (identical)


3. Speech of Senator Nick Bolkus: noting that ‘There is a new exception in the bill for temporary copies made in the course of the technical process of making or receiving communication. This includes the browsing of copyright material online.’

Note also that you will search that legislative history in vain for any example that implies that the communication right is intended to apply to receipt, as well as sending. I think it would also be fair to note, in terms of the legislative history, that the right to communicate works to the public replaced (and of course expanded) the right to broadcast works, and the 'cable' right (or diffusion right). Both of these rights that were replaced were classic 'broadcast' type rights, aimed at 'one to many' communications (and under which the broadcaster was the one liable). Don't you think that, if the government intended to completely reshape these rights to hold recipients liable, it would have noted that fact? Again, you will search in vain for any such reference in the legislative history.

Even more comprehensive are the comments in the 1997 Discussion Paper that preceded the Digital Agenda Reforms, a paper called Copyright Reform and the Digital Agenda. At that time the government were considering two rights, a right of transmission and a right of making available. Notably, at that time, this is how they described the ‘transmission right’:

4.11 The proposed transmission right would apply to transmissions to the public in the traditional non-interactive sense of "broadcasting", that is, the emitting of signals from a transmitter to a receiving device at a time chosen by the person making the transmission. The person receiving broadcast can only receive it at the time when the person making the broadcast chooses to make the transmission.
4.12 The proposed new transmission right would be separate from the existing public performance rights in the Act. This would result from the proposed definition of "transmission" as requiring the use of reception equipment to perceive the material transmitted.
Sounds like a one-way act to me. I should also quote the section on browsing:
4.60 The act of "browsing", or simply viewing, copyright material on an Internet site is obviously not caught by the proposed right of making to the public. Browsing is simply the viewing by a person of material - there is no act of transmission by the site proprietor and the material has already been made available to the public.
4.61 Browsing would appear not be an exercise of the transmission right by the browser. As browsing usually, if not invariably, results in a temporary copy of the material being browsed materialising in the browser's computer terminal, there is an issue whether such a copy should be covered by the reproduction right or, alternatively, should be within the exception for incidental copies discussed above. It is proposed that the incidental copy created in the course of browsing would not infringe the reproduction right. As discussed above in relation to the incidental copy exception for transmissions, if at any point a stored temporary copy is used for any other purpose than simply being part of a technical process to enable browsing of the copyright material, that use - if it constituted an exercise of the copyright in the material - would be a separate act and would require the permission of the copyright owner.’

In other words, at that time, the government took the view that (a) there was no communication by a browser, and (b) that any reproductions by a browser should be covered by an exception. Could things be any clearer?

The framework of the Act says the argument will not succeed

Another reason this argument will not succeed is because it is inconsistent with the way the Act is drafted, for a number of reasons. Let me pick up just a couple:

1. At the time of the digital agenda amendments in 2000, the government wanted to make sure that people were not infringing when they ‘browsed’ online. To do so, the government put in exceptions to prevent any copies made in the course of browsing from being infringements. No mention of an exception to the communication right for browsers. Why? Because they weren’t seen to be necessary. (this is acknowledged in Ricketson & Creswell’s Looseleaf, at [9.405])


2. In creating these exceptions, the government wrote s 43A, which provides that ‘The copyright in a work, or an adaptation of a work, is not infringed by making a temporary reproduction of the work or adaptation as part of the technical process of making or receiving a communication’. In other words, receiving a communication is a different act from making one. This is flatly inconsistent with CAL’s argument.


3. How does s 49(5A) make sense? Under this provision, a library may make a work, acquired in electronic form, available to members of the public online within the premises of the library, provided that users cannot, by using any equipment supplied by the library or archives, communicate the article or work. But if the users are ‘communicating’ when they view the material, it becomes impossible to comply with this provision (unless s 43B provides an exception to it. But s 49(5A) has been in the Act since 2000. 43B only came in with the amendments in 2005. Surely, when s 49(5A) was enacted, the government contemplated some use for it?).

I’m sure I could find more provisions that show the assumption was that communications are made to and from. But I just can’t be bothered. These ones should suffice.

The Australian case-law says the argument will not succeed

We can also look at what the Australian courts have said so far about the communication right. The right has been considered in Cooper, and briefly in Kazaa. Given that Kazaa has just been heard, and given too that Cooper considered the communication right more deeply, let’s look at Cooper. In Cooper, Tamberlin J considered an argument that a website, carrying links to material on third party websites, was ‘communicating’ the linked-to material to the public. Tamberlin J rejected this argument, although he did hold that the website authorised infringement by the third party website (even this holding would have to be controversial, I think, but that’s another story.)

The relevance here though is that Tamberlin J held that ‘it is the remote websites which make available the sound recordings and from which the digital music files are downloaded as a result of a request transmitted to the remote website’. As I’ve pointed out in an earlier post on the Google case, Tamberlin J here is adopting a kind of ‘server theory’ of liability under the right to communicate. Rightly, I think. What Tamberlin J was saying was that people along the line - people who don't “determine”, “formulate” or “create” the content of a website, that don't design, operate or own a website do not 'communicate' the material on a website.

Tamberlin J also considered whether Cooper was ‘transmitting’ the recordings, holding:

‘the actual transmission of the music sound recording begins with the commencement of the downloading of the recording from the remote website on which the recording is located to the end user. I accept that the electronic transmission of the sound recording to a user who triggers the hyperlink on the Cooper website is a communication to a member of the public from the remote website, however, it is not a transmission from the Cooper website.’

It seems to me that it is implicit in this statement that the transmission is from the third party website to the user. True enough, Tamberlin J did not have consider whether the user was also ‘communicating’. But the sense of Tamberlin J’s judgment is unidirectional communication.

CAL might also consider this injunction by Tamberlin J in Cooper:

I do not consider that such a literal analytical approach, namely, a word-by-word dissection of the dictionary meaning of the expression "make available online", is appropriate in this case. As Learned Hand J said in Helvering v Gregory (1934) 69 F.2d 809 at 810-811: ‘... the meaning of a sentence may be more than that of separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.’

And what do the commentators say?

The main people to write on this in Australia were Christie and Dias, in an article in the Sydney Law Review. They concluded that a communication was made by the sender.

Lahore’s looseleaf also seems to adopt the same approach, in its discussion of the Cooper case:

Tamberlin J rejected as “artificial in the extreme” the argument that Cooper had determined the content of infringing transmissions by permitting hyperlinks to remote websites where the files were stored. Having referred to the legislative history in response to APRA v Telstra, his Honour held that Cooper did not “determine”, “formulate” or “create” the content of the remote websites; that was the entitlement and role of the person (or persons) who designed, operated or owned the remote websites. His Honour rejected Universal’s attempt to rely on Cooper’s power to control what hyperlinks were displayed on his website. This must, with respect, be right as the attempt to rely on control indicates that Cooper’s involvement, if infringing, was indirect or secondary — his conduct by his website facilitated — to use a neutral term — the infringing activity of others.

In summary

OK, let's summarise. I've argued that the ordinary meaning of the words of the statute, the legislative history, the framework of the Act, the comments in the case-law and the comments of academics all tend not to support the argument that a person clicking on a link could be said to be communicating material to themselves and hence to the public. Let me just note, that I looked for contrary examples. I really did. I wondered whether someone had made the argument, or whether an example had been given in the legislative history somewhere that suggested that persons clicking on links or typing in URLs could be said to be communicating to the public. I really couldn't find anything. I'm more than happy to be corrected, of course.

Oh, and then there’s the question of whether the communication is to the public

So far, I’ve left to one side another issue: and that is, when a student clicks on a link, and views the site, are they communicating to the public? Now, the only possible ‘public’ is themselves. Can a communication to yourself be a communication to the public?

Now, the concept of the copyright owner’s public is, well, a pretty circular one in Australian law. No doubt about it. The High Court has, after all, held (Telstra v APRA) that when music is played by a company, to a person on the phone and on hold, then that is ‘to the public’. The view, basically, has been that even broadcasts that are received in private circumstances can be commercial, and of a kind that a copyright owner is entitled to consider their own. Hence they can be considered ‘to the public’. Now, Telstra v APRA was possibly a high water point for what might be considered the ‘copyright owner’s public’. But at least APRA didn’t hold that communicating to myself could be considered communicating to the public.

Consider the broader implications for a moment. On this reasoning, whenever I click on a link online, I am communicating that material to the public (ie, me). That is true whether I read an article on The Age (communicating the text to the public), or when I listen to TripleJ’s streamed radio broadcast (communicating the broadcast to the public).

On this argument, if a person sings Britney Spears in the forest, and no one is there to hear it (thank the lord), then that person does still owe someone a royalty – even when no one is there to hear the notes – because the person performs ‘to himself’, and they are part of the copyright owner’s public. I do appreciate that the concept of the ‘public’ is pretty circular (public for which copyright owner is entitled to be paid = copyright owner’s public = public copyright owner entitled to consider they should be paid for), but on this argument, the concept of ‘public’ pretty much disappears up … never mind.

And you know what? There's still a further issue: and that is that the student would have to be communicating to him or herself on behalf of the school. I'm not even going to get in on that. Of all the parts of this argument, that's the one that looks at least arguable on some level.

The broader implications of the argument

Does the argument being put in this case only matter for schools (and universities, being under the same broad statutory license scheme)? Well, no. You see, this argument, if upheld, would make every act of browsing the Internet into something the copyright owner has the right to control, subject only to exceptions or license. Most of the relevant exceptions provided in the act exempt temporary copies, but don’t exempt communications, so they don’t help. Now, in general, you would expect, all the browsing that goes on online is impliedly licensed when people connect their stuff to the Internet. But that’s not much comfort in the longer term. Implied licenses can be revoked by express words of the copyright owner. People could start putting real conditions on their websites. And that would start to get in the way of ordinary browsing activities, potentially. So the argument does have broader implications.

Some final comments

A couple of final comments are appropriate. I noted at the outset that one reason why this argument might be being made is because CAL are concerned that increasing use of the Internet in schools will cannibalise the copying previously made under the educational statutory licenses. If teachers, and lecturers provide lists of links, instead of copies of readings, CAL might have reason to be concerned that copying will, indeed, drop. I can understand such a concern. But there are two reasons why it should not be dealt with this way.

First, as I noted at the outset, remuneration is provided through the statutory licenses in recognition of the fact that copying is an exclusive right of the copyright owner, and most particularly, because copyright owners suffer some loss when copying occurs in schools and universities. This is of course particularly true for educational books. If schools could just copy educational texts, they would buy one and copy. Thus a statutory license is appropriate. The point here is that we are talking about publicly available material on the Internet. The copyright owner in those circumstances makes a choice to put stuff online. They cannot be expecting to be remunerated. If you want to be paid, put it behind a wall.

Second, concerns like cannibalisation should be dealt with openly, through debate. Not by attempting to stretch statutory provisions beyond their natural reach. If copyright owners want us to consider the creation of an exclusive right to view online, let’s have the debate. In Parliament. I think I know which way that debate would go.

One final point. The legal argument I've discussed here is only one aspect of CAL's case, as I understand it. There is more, much more to the whole thing. What I've examined here is one legal argument - but an important, and truly radical one.

 
Timing, Timing, Timing - update on the TPM Inquiry Report

I blogged briefly yesterday about the release of the TPM Inquiry Report; it's been attracting some international interest, and you can see my previous post for links to that commentary.

I'm still trying to digest the effect of the report. But the AFR has a story today (sorry, subscription only) noting that the report may well lead to conflict with the US. And here's the kicker: our Trade Minister is apparently meeting US trade officials in Washington DC next week to review the first 15 months of the FTA.

What's the bet he gets a bit of a pounding on the Report?

But what to do? From an Australian political perspective, it would be difficult, I would think, to simply reject the recommendations of a properly convened Parliamentary Committee which has considered Australia's interests. But from a realpolitik perspective, the US is not going to be happy if Australia veers too far from America's preferred interpretation. Not just because they care about the Australian market. Because they will be worried about the precedent it would set for the many other countries in the world who are in (or negotiating) FTAs with identical provisions. (Oh, and on this, note the EFF commentary from yesterday).

Minister Vaile, one thing you should bear in mind. The view of the US Trade Representative on US IP law often goes beyond what US IP law actually provides. US courts have interpreted, for example, the DMCA to require a link between copyright infringement and access control measures: a fact that is not reflected in the USFTA texts. US courts have rejected protection for all temporary copies within a computer's memory - a fact not reflected in the USFTA texts. My past conversations with US copyright law experts have constantly underlined the fact that the view pushed by the USTR is not an accurate representation of developing US law.

What about that mum-and-dad issue of region-coding? Well, it's possible that Minister Vaile could get pounded on the idea of excepting region-coding TPMs from protection (recommendation 4 in the Report). In this context, it's also worth pointing out that, on the region-coding thing, Singapore actually negotiated a specific exception to allow circumvention to overcome region coding. So clearly this is not essential to US interests.

While it is important that Australia not go off on a complete frolic, it is also important that Australia interpret the FTA in accordance with its own laws, legal structure, and interests. I don't envy the Minister. But I would reiterate my submission to the Committee - in international legal terms, we do have some freedom here to interpret the treaty in accordance with our interests. That is, after all, the reason we negotiated a delay into the FTA text - in order to do so.

 
TPM Inquiry Report is out [updated!]

Well, it's out. Yesterday, the House of Reps Standing Committee on Legal and Constitutional Affairs released its report on the Review of Technological Protection Measures Exceptions. This is the committee set up to examine what exceptions should be created, as Australia implements Article 17.4.7 of the AUSFTA, which requires Australia to implement stronger anti-circumvention laws, more akin to the US DMCA.

And what a report it is. It has a list of 37 recommendations. Among them are:

1. A recommendation that the implementation of the FTA 'clearly require a direct link between access control and copyright protection'
2. A recommendation that 'the Government ensure that access control measures should be related ot the protection of copyright, rather than to the restriction of competition in markets for non-copyright goods and services.'
3. A recommendation that region coding TPMs be specifically excluded from the definition of effective technological measure
4. A recommendation on allowing interoperability that allows for reverse engineering of software for interoperability purposes, circumvention for software 'installed involutnarily or without accceptance, or where the user has no awareness a TPM or no reasonable control over the presence of a TPM',
5. that the Government 'monitor the potential adverse impact of threats of legal action being made against legitimate researchers in Australia conducting research into encryption ... and other issues relating to computer security
6. That the government consult with the National Gallery of Australia and any other relevant institutions to identify an appropriate exception for TPM circumvention for remporary reproduction for exhibition and preservation purposes

A whole bunch of exceptions for:

1. making back up copies of computer programs
2. provision of materials to Parliament or for the Crown, and generally to allow 'for the full range of government activity'
3. obsolete, lost, damaged, defective, malfunctioning or unusable software
4. where the amount of non-copyright material protected under a TPM is substantial.

AND there is a recommendation that the US nullify any agreements purporting to exclude/limit the application of permitted exceptions. Hello, CLRC. It's fascinating that the CLRC's Copyright and Contract Report (from oh, 4 years ago)- which made recommendations that contract should not be allowed to be used to avoid exceptions - is one report that representatives of the Attorney-General's Department did not mention at the ACIPA Conference in February as being one the government were preparing to respond to. This recommendation puts the issue on the agenda. Again. As did the Digital Agenda Review report. Oh, 2 years ago.

In essence, it appears that the House of Reps Committee has been convinced by arguments put to it about the importance of maintaining the copyright balance in the Act, and accepted, too (rightly, in my view) that it's role was not limited to the role taken on by the US Copyright Office in its triennial process.

No, user groups can't dance in the streets at this stage. These are recommendations: implementation is for the government and is the next phase.

But this unanimous report puts the ball squarely in the government's court. Two arms of government have now spoken: the High Court of Australia, and a committee of the Parliament. Both have affirmed that copyright law must be balanced; that anti-circumvention laws should be matched to copyright rights, rather than overly extending them . How will the executive react?

update: I should note that there will be real questions about how much of what is proposed in the report can be done consistent with the AUSFTA. I expect there will be debate about that, although we must also assume that the Committee have been advised about and discussed those issues, and the recommendations do differentiate between situations where they think their proposal is allowed, and situations where they are less sure. The broad thrust, of preserving the Australian exceptions regime, is, however, significant.

I've not had a chance to digest this 162 page report. As I do, I will comment further.

update 2 (4pm): Some commentary is starting to come out:

• Joshua Gans here (on the region coding issue!)
• Michael Geist (Canada) here.
• Warwick Rothnie here
• EFF here (This post is particularly recommended - it talks about hwo the Australian report responds to the US process)
• Groklaw here (Brendan Scott)
• BoingBoing here

 
ALRC to review Sedition Laws

Attorney-General Philip Ruddock today announced the Australian Law Reform Commission (ALRC) will review Schedule 7 of the Anti­Terrorism Act (No. 2) 2005 and the provisions of Part IIA of the Crimes Act 1914. The Terms of Reference are not yet on the website, but say:

I, Philip Ruddock, Attorney-General of Australia, having regard to:

• the circumstances in which individuals or organisations intentionally urge others
  to use force or violence against any group within the community, against
  Australians overseas, against Australia’s forces overseas or in support of an
  enemy at war with Australia; and
• the practical difficulties involved in proving a specific intention to urge violence
  or acts of terrorism;

refer to the Australian Law Reform Commission (‘the Commission’) for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, the operation of Schedule 7 of the Anti-Terrorism Act (No. 2) 2005 and Part IIA of the Crimes Act 1914.
1. In performing its functions in relation to this reference, the Commission will consider:
(a) whether the amendments in Schedule 7 of the Anti-Terrorism Act (No. 2) 2005, including the sedition offence and defences in sections 80.2 and 80.3 of the Criminal Code Act 1995, effectively address the problem of urging the use of force or violence;
(b) whether ‘sedition’ is the appropriate term to identify this conduct;
(c) whether Part IIA of the Crimes Act 1914, as amended, is effective to address the problem of organisations that advocate or encourage the use of force or violence to achieve political objectives; and
(d) any related matter.

This is a good thing.The concept of having a review is a good thing, although it's interesting that the terms 'freedom of speech' and 'freedom of artistic expression' don't make their way onto the terms of reference at all, since that was part of the public debate that led to the reference. But certainly 'any related matter' is broad enough to cover those issues.

The problem is the timetable. It's really tight - the press release says that the ALRC has to report by May 2006. Doesn't the government want a real review?