"Australians use them more than any other websites and to many they have become essential services, oiling the wheels of life and commerce at the click of a mouse.
Flurry, a mobile analytics firm, estimated that in the period from Dec. 23 to Dec. 26 last year, 240 million applications were downloaded to Apple mobile devices, or about 20 percent of the total downloads for the month.
Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd  FCA 1319 (18 November 2011)
The case concerned two Australian patents owned by Apple. Apple asserted that the Samsung Galaxy 10.1 Tablet infringed claims of those two patents. An injunction was granted by the trial judge to prevent Samsung launching the Galaxy 10.1 in Australia until trial. Today, Samsung was successful in having that injunction removed.
As soon as the appeal court decision was announced today, Apple asked for the decision to be suspended so that it could appeal to the High Court of Australia. Apple asked this without even reading the Court's decision. The judge today suspended the decision until 4pm Friday, in effect keeping the injunction in place until Friday. Apple now has until 4pm Friday to convince the High Court of Australia to keep the injunction in place -- a hard task.
By DAVID SEGAL
Law schools have long emphasized the theoretical over the useful, leaving law firms fairly resigned to training their hires how to actually practice law.
Speedo Holdings B.V. v Evans (No 2)  FCA 1227 (3 November 2011)
Amazon's online store has great prices and service, and is efficient for consumers. But someone has to pick and pack the goods ordered online. Amazon has a number of distribution centres to do this. And according to U.S. newspaper reports, Amazon is running these distribution centres as sweatshops. This is the downside of cheap prices and Internet stores.
Just Google "Amazon Sweatshop Pennsylvania" and you will find numerous articles about this situation.
Free shipping, free movies, free books, for $80 a year. What, exactly, is Amazon up to?
There has to be some master plan, because Amazon is spending itself silly to pull this off. Because the offer is limited to owners of Kindles — it doesn’t work if you use the Kindle service on an iPad, for instance — it is intended to sell more Kindles."
The new algorithm is a recognition that Google, whose dominance depends on providing the most useful results, is being increasingly challenged by services like
It is also a reflection of how people use the Web as a real-time news feed — that if, for example, you search for a baseball score, you probably want to find the score of a game being played at the moment, not last week, which is what Google often gave you."
Full story in NY Times.
The key findings were that:
- ordinary and reasonable members of the relevant class of consumers are likely to understand that sponsored links are advertisements; and
- Google merely communicated the representations made by advertisers, without adopting or endorsing any of those representations
The court's reasons for decision are published at http://www.austlii.edu.au/au/cases/cth/FCA/2011/1086.html
CyberSource is the owner by assignment of a patent, which recites a “method and system for detecting fraud in a credit card transaction between [a] consumer and a merchant over the Internet.” Claim 3 of the patent recites a process for verifying the validity of credit card transactions over the Internet.
"We are not persuaded by the appellant’s argument that the claimed method is tied to a particular machine because it “would not be necessary or possible without the Internet.” Appellant’s Br. 42. Regardless of whether “the Internet” can be viewed as a machine, it is clear that the Internet cannot perform the fraud detection steps of the claimed method. Moreover, while claim 3 describes a method of analyzing data regarding Internet credit card transactions, nothing in claim 3 requires an infringer to use the Internet to obtain that data (as opposed to obtain- ing the data from a pre-compiled database). The Internet is merely described as the source of the data. We have held that mere “[data-gathering] step[s] cannot make an otherwise nonstatutory claim statutory.”
From the NYTimes:
SAN FRANCISCO — What began as seamy gossip about an affair between a famous British soccer player and a reality TV star has quickly become another test over how far the rights to privacy and free speech extend online, where social media operate in countries with vastly different laws.
The soccer player has been granted a so-called super-injunction, a stringent and controversial British legal measure that prevents media outlets from identifying him, reporting on the story or even from revealing the existence of the court order itself.
But tens of thousands of Internet users have flouted the injunction by revealing his name on Twitter, Facebook and online soccer forums, sites that blur the definition of the press and are virtually impossible to police.
Last week, amid growing outrage in Britain over the use of super-injunctions, the athlete obtained a court order in British High Court demanding that Twitter reveal the identities of the anonymous users who had posted the messages. A Twitter spokesman, Matt Graves, said the company could not comment on the court order or how it planned to respond.
Eric Goldman, director of the High Tech Law Institute at Santa Clara University, said, “It’s really going to the core of Twitter’s service and trying to balance the speech of its users and the fact that countries have different laws and norms about speech.”
What impact does the Electronic Transactions Act have on e-commerce / online contracting?
In this area you should also look at:
the Queensland legislation
Standard forms of agreement
Click wrap v Shrink wrap - what are the differences?
Setting up a website
What should you be aware of (having regarding to previous lectures)?
International treaties - Berne Convention
The law in Australia - Copyright Act, and amendments related to the internet - Computer Programs Act 1999, Digital Agenda Act 2000, US Free Trade 2004
Australian Cases - piracy and copyright
Stevens v Sony
Balancing interests of copyright owner and users - Electronic Frontiers Australia
Licensing through Creative Commons
Michael Laufert, working with the ABA Communication and Digital Technologies Industries Committee, has put together a website devoted to antitrust and collaboration issues facing tech industries. Common topics are patent pooling, standard setting and the like. His site, "Collaboration and Competition in Technology," is available at the link below or through CDTI's page on the Section's website:
What are the 3 elements of a UDRP proceeding?
Is the auDRP identical?
Read the case of
Read the cases of
For this lecture, everyone should be prepared to discuss one case with the rest of the class - search here, or for interesting issues and WIPO's preferred views, here
What are the advantages and disadvantages of the UDRP/auDRP process?
Google said Friday that it collected location data from Android phones, but that it did so anonymously and with user consent. The company said it gathered the data to provide services like maps and searches for shops or restaurants near a person’s location. The company said it also used the information to estimate traffic on various roads.
“Phones know where you are, and they need to for many of the services we offer,” said Mike Nelson, a Google spokesman.
They send their lawyers. Or they just wait. But Tzvetkoff, incredibly, has used his position from inside a US jail to, first, free himself, and then go on the offensive against the very people who are chasing him.
The Queensland internet entrepreneur, 28, was mysteriously bailed from a US federal prison last August. He has rolled to save his neck.
US federal prosecutors are using Tzvetkoff's unique inside knowledge of how big online gambling companies shift money out of the US in exchange for a sweet deal."
See Courier Mail front page story
"ASSOCIATES of former internet high-flyer Daniel Tzvetkoff have been charged after a flurry of arrests in the US over illegal online gaming following his release last year from a New York prison.
US judges have sealed the files on Mr Tzvetkoff's criminal case, after he was secretly released from prison -- without a bail hearing -- on charges he was involved in a $500 million money-laundering scheme for illegal online poker sites.
Secrecy now surrounds the former Gold Coast-based entrepreneur's movements, with prosecutors refusing to disclose if they are going ahead with the charges that carry a 24-year jail term."NY Times
We were notified by our database marketing vendor, Epsilon, that we are among a group of companies affected by a data breach. How will this affect you? The company was advised by Epsilon that the files accessed did not include any customer financial information, and Epsilon has stressed that the only information accessed was names and e-mail addresses. The most likely impact, if any, would be receipt of unwanted e-mails. We are not aware at this time of any unsolicited e-mails (spam) that are related, but as a precaution, we want to remind you of a couple of tips that should always be followed:
• Do not open e-mails from senders you do not know
• Do not share personal information via e-mail
Should freedom of speech on the Internet prevail over protection of the public interest? Does the public need to be protected? What is the difference between censorship and regulation?
What are the relevant public interests? Who decides?
Should there by government regulation, or reliance on technology (such as NetNanny), or parental responsibility (e.g., see Google's Family Safety Centre)?
- New classification review
- Australian ISPs forced to clean Internet and "mandatory web filter under fire"
- Hillary Clinton on Internet Freedom
- Anti-piracy v. internet freedom
- China and "China Web Censorship Stirs Scorn"
Australian legislation - Spam Act 2003
How many prosecutions have been brought in Australia? Is the Spam Act an effective deterrent?
IIA Spam Code
US (CAN SPAM Act) and recent court action by Microsoft
What other jurisdictions have enacted Spam legislation?
AFP - e-crime
Lack of reporting?
Phishing attacks - Westpac ATO Canada CRA
Top 10 countries for phishing
Extract from legal newsletter, IBLS:
The latest advocate general opinion on keywords advertising could, if followed by the European court, have a significant impact on Google’s advertising model. The advocate general’s opinion in Interflora v M&S advises that a trademark owner can take action against an advertiser who attempts to benefit from the attractive force of the proprietor’s mark. This is the first time that such a high court has opined on a dispute between a trademark owner and advertiser, rather than examining Google’s role – but it could deter advertisers from bidding on others’ trademarks.
The advocate general states that trademark use as a keyword can be forbidden under Article 5(2) of the European Trademarks Directive if “the advertiser attempts thereby to benefit from its power of attraction, its reputation or its prestige, and to exploit the marketing effort expended by the proprietor of that mark in order to create and maintain the image of that mark”.
Yesterday evening a crowd gathered at University College London for a seminar on the future of advertising function of the trademark. Although the speakers were in the dark about the advocate general’s opinion in Interflora, they nevertheless provided insight that takes on a new light today. For instance, this latest opinion continues the court’s flirtation with the advertising function, which could disappoint Annette Kur, one of last night’s speakers and co-author of the recent study into the European trademark system. “Including the advertising function into reasoning under Article 5(2) TMD is unnecessary and dangerous,” she said, advising brand owners to forget about trying to use the advertising function to gain protection beyond the established function of the trademark. “Stick to what you know,” she said.
Trademark owners will have to wait some time for the court’s judgment in Interflora.
See also FT
Co-founder and CEO More information"
Yesterday, Judge Denny Chin of the District Court for the Southern District of New York rejected the proposed settlement in The Authors Guild v. Google Inc. in relation to Google digitizing books. The judge stated: "The question presented is whether the [Amended Settlement Agreement (the “ASA”)] is fair, adequate, and reasonable. I conclude that it is not.
While the digitization of books and the creation of a universal digital library would benefit many, the ASA would simply go too far. It would permit this class action – which was brought against [Google] to challenge its scanning of books and display of “snippets” for on-line searching – to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engagin in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case."
The recent U.S. case of CLS Bank v. Alice addresses patent eligibility requirements for computer-implemented business and financial methods.
Alice is an Australian company that owns four United States patents; it asserts that CLS infringes these four patents. CLS is an “Edge Act Corporation,” organized under Section 25A of the Federal Reserve Act, as amended, 12 U.S.C. § 611, and authorized by statute to engage in international banking activities.
Summary provided by the U.S. law firm that represented the successful party: On March 9, 2011, the U.S. District Court for the District of Columbia dismissed all claims of patent infringement brought under four patents directed to computer-implemented methods, systems, and products for exchanging a financial obligation, because each of the patent claims was directed to an “abstract idea” and was invalid because it was directed to non-patentable subject matter. The decision is significant because, among other things, it addressed numerous questions left unanswered by the U.S. Supreme Court’s decision last year in Bilski v. Kappos, 130 S. Ct. 3218 (2010). This Client Alert reviews the decision and the significance the decision may have on the scope of the abstract idea exception that had not been addressed either by the Federal Circuit or by the Supreme Court in their respective Bilski decisions.
In February the US Department of Homeland Security used this new act to seize 83 internet domains. The seizure involved re directing the DNS of that domain to a banner as shown here. One domain in particular was channelsurfing.net, this web site hosted links to other sites which hosted copyrighted material. The site operator Brian McCarthy is now facing court for Criminal Infringement of a Copyright.
As a part of this DNS seizure the DNS hosting provider FreeDNS was disabled. This caused the approximately 84,000 customers of FreeDNS to be redirected to the DHS 'banner', some of whom were not related to the original seizure at all (eg RapGodFathers.com)."
Compare the Australian case of
Together they will take a look at the role social media is playing in bringing about true democracy, challenging conventional economies and helping the scientific community accelerate research."
Office of Australian Information Commissioner - look at the Privacy Act and Privacy Principles.
What legislative changes have been proposed for Australian privacy laws?
You should also be aware of relevant case law in this area - is there a right to privacy at common law?
Art 17 of International Covenant on Civil and Political Rights
Do you understand/agree to all of these terms?
Legal responses - Australia; USA; Czech Republic; Germany. What are some other responses from around the world, particularly in relation to the Street View data collection issue?
No longer a social norm?
Given the nature of the alleged infringement here, the most relevant factors to the analysis of the likelihood of con- fusion are: (1) the strength of the mark; (2) the evidence of actual confusion; (3) the type of goods and degree of care likely to be exercised by the purchaser; and (4) the labeling and appearance of the advertisements and the surrounding context on the screen displaying the results page.
The district court did not weigh the Sleekcraft factors flexibly to match the specific facts of this case. It relied on the Internet “troika,” which is highly illuminating in the context of domain names, but which fails to discern whether there is a likelihood of confusion in a keywords case. Because the linchpin of trademark infringement is consumer confusion, the district court abused its discretion in issuing the injunction. "
What are the risks of doing business with these organisations?
For some background you can look at:
Don't Be Evil
Google Product Offerings
Google Book Project
AdWords - Australia
Facebook and Privacy
Endorsements - US position
Review of patentable subject matter in Australia
The Australian Advisory Council on Intellectual Property has released its review of patentable subject matter. The Advisory Council is an independent body appointed by the government, and advises the Federal Minister for Innovation, Industry, Science and Research on intellectual property matters.
Click here to view the report
Click here to view the Advisory Council's Media Release
In his judgment Justice Finkelstein held that: "while it cannot be said that Allergy Pathway was responsible for the initial publication of testimonials (the original publisher was the third party who posted the testimonials on Allergy Pathway's Twitter and Facebook pages) it is appropriate to conclude that Allergy Pathway accepted responsibility for the publications when it knew of them and decided not to remove them. Hence it became the publisher of the testimonials."
In responding to the judgment, ACCC chairman Graeme Samuel said: "Many corporations now use Facebook "Fan" pages and Twitter accounts to promote their businesses. This outcome confirms that any business that decides to leave public testimonials or other comments on their Facebook and Twitter pages will be held responsible if they are false, misleading or deceptive."
In my opinion, there is a big risk using a non-specialist lawyer to run a domain name dispute under the UDRP or auDRP. A recent example is ...
The United Nations intellectual property agency (WIPO) is the latest front in the US-China trade war. http://www.theage.com.au/world/sad-am...
Carly Long, an expert in domain name litigation, will teach the first half of the class this Tuesday evening. You may wish to have a look a...
Finally, what is called direct registration of domain names is coming to Australia. See https://www.auda.org.au/statement/australias-interne...