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Real Estate Photographs Online

A recent Federal Court appeal considered the scope of the right to use photographs taken when marketing a house for sale.  This decision is relevant to anyone who wishes to commercialise data that they obtain for one purpose for a different purpose.

The real estate agent engages a photographer to photograph a house that is for sale, with the intent to upload the photographs onto a real estate sales portal such a RealEstate.com.au or Domain.com.au to advertise the property for sale.  The REA portal has terms that bind the real estate agent.  These terms include the right to sublicense the photographs and the listing information to CoreLogic RP Data for their property information database. 

The court found, in a 2-1 split judgment, that merely because the photographer allowed the photos to be uploaded to REA did not mean that the photographer agreed to REA's terms or agreed to allow the photographs to be sublicensed to CoreLogic RP Data.

In effect, the real estate agent is in breach of the REA contract by uploading the photos in these circumstances.  The license from the photographer to the real estate agent to allow the upload to REA is, in effect, useless unless the agent also obtains terms from the photographer that match the REA license.

CoreLogic RP Data is now in breach of the photographer's copyright.

A strange result. 

Hardingham v RP Data Pty Limited [2021] FCAFC 148

Direct Registration of Domain Names in Australia

Finally, what is called direct registration of domain names is coming to Australia.

See https://www.auda.org.au/statement/australias-internet-domain-growing-get-ready-getyourau

This will allow registrations such as swinson.au and telstra.au, without the .com part of the domain name.

This arose out of the work of the 2017 Policy Review Panel, of which I chaired.  See Paper and website.

Tweets not Journalism

The Federal Court of Australia has decided that a person who published allegedly defamatory tweets on Twitter does not receive the benefit of the journalists' privilege under the Evidence Act.

See Kumova v Davison [2021] FCA 753

This does not mean that a person who tweets can never be considered to be a journalist.  In this case, looking at the Twitter feed as a whole, the defendant was not considered to be a journalist.

See this helpful note from Clayton Utz.  Also Bennett & Co.  Story in the AFR and The Age.

 

Automonous Vechicles

 “The real problem is going to be, at what point is it still ethical to let the human drive,” Lunn said. “But before that, AI has to continue to learn from human drivers. Autonomy will have to make sure that we never have a trolley problem.”

Washington Post, 6 August 2021

Liability for anonymous online reviews

The Federal Court handed down a judgment yesterday regarding defamation for anonymous online reviews of a dentist.

Nettle v Cruse [2021] FCA 935

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca0935

"The publications in question here were excessive, scandalous and totally unjustified and unjustifiable. I have no hesitation in finding that they were malicious and calculated to cause maximum damage to Dr Nettle. The fact that Ms Cruse chose to publish such baseless and scandalous material about Dr Nettle either anonymously or in false names supports the inference that she well knew that it was false and misleading. That is perhaps confirmed by the fact that, when Dr Nettle eventually commenced this proceeding, Ms Cruse chose to disappear rather than front-up and defend her indefensible actions. Ms Cruse’s conduct towards Dr Nettle was, in all the circumstances, contumelious and disgraceful."

Ransomware and class action lawsuits

A good article on class action lawsuits in the United States that come after a ransomware attack:

Washington Post article

 "“Companies with good security sometimes have lapses,” Solove said. There isn’t a unified legal standard laying out what sort of security a company needs to have to protect it from liability if it loses its customers’ information or suffers a ransomware attack.

“It really isn’t clear what the standard of care is,” he said. “It’s tricky. All you have to do is fail on one thing.”

That means the potential for lawsuits will keep growing as ransomware attacks do. And if lawyers can reasonably show that a company made some kind of mistake in protecting its system, victims will have an avenue to sue."

 I wrote a short article on the topic of cybersecurity lawsuits at the beginning of this year.  See

AI machine can be an inventor, says Australian judge

A single judge of the Federal Court of Australia, Justice Beech, has overruled the Commissioner of Patents and decided that a computer program (an artificial intelligence system) can be an "inventor" for the purposes of the Australian Patents Act in respect of a PCT patent application.

In summary, the judge found:

  • An AI system is not a legal person.
  • An AI system cannot own a patent.
  • An AI system cannot assign a patent.
  • But an AI system can be an inventor of an invention that is the subject of a patent application.
  • Ownership of the invention goes to a legal person -- in this case, the person who owned the copyright in the AI system and operated the AI system.

Justice Beech said:

"167    Dr Thaler is the owner, programmer and operator of DABUS, the artificial intelligence system that made the invention; in that sense the invention was made for him. On established principles of property law, he is the owner of the invention. In that respect, the ownership of the work of the artificial intelligence system is analogous to ownership of the progeny of animals or the treatment of fruit or crops produced by the labour and expense of the occupier of the land (fructus industrialis), which are treated as chattels with separate existence to the land. ...

189    In my view, Dr Thaler, as the owner and controller of DABUS, would own any inventions made by DABUS, when they came into his possession. In this case, Dr Thaler apparently obtained possession of the invention through and from DABUS. And as a consequence of his possession of the invention, combined with his ownership and control of DABUS, he prima facie obtained title to the invention. By deriving possession of the invention from DABUS, Dr Thaler prima facie derived title. In this respect, title can be derived from the inventor notwithstanding that it vests ab initio other than in the inventor. That is, there is no need for the inventor ever to have owned the invention, and there is no need for title to be derived by an assignment. ...
 

194    Now more generally there are various possibilities for patent ownership of the output of an artificial intelligence system. First, one might have the software programmer or developer of the artificial intelligence system, who no doubt may directly or via an employer own copyright in the program in any event. Second, one might have the person who selected and provided the input data or training data for and trained the artificial intelligence system. Indeed, the person who provided the input data may be different from the trainer. Third, one might have the owner of the artificial intelligence system who invested, and potentially may have lost, their capital to produce the output. Fourth, one might have the operator of the artificial intelligence system. But in the present case it would seem that Dr Thaler is the owner."

 In short, title to the invention derives from an inventor who does not own the invention.

This case is not particularly helpful in determining who is the owner of the invention if there is more than one person involved -- for example, if Microsoft owns the copyright in the AI program running in the cloud, 20 people collect the training and input data over many years, I design the problem, and you and a team of people operate the AI system.

Does this case also mean that a corporation or a monkey could be an inventor?

The Patents Act requires that the inventor's name and address be provided to the Patents Office.  Does an AI system have a legal name or an address?  The case did not consider this.  Dr Thaler named his AI system as DABUS, so I guess that is the name of the inventor.  It is not really a name in the legal sense.

The judge spent little time considering the basis of the patent system - to incentivize people to make inventions.  A computer does not need an incentive.  The judgment briefly mentions this, and appears to suggest that creating an incentive to create an AI machine that invents is sufficient.  On that basis, patent patent system should reward parents for having sex to create a child and teaching the child to invent.

The judgment is artificial and shows little real intelligence.

And see about this South African patent: https://www.cyberspac.com/2021/08/ai-machine-can-be-inventor-says.html  Did it go through a full examination?

How reliable is AI in criminal evidence

A good article about how an AI system produces evidence used by police.  But humans changed the output of the AI algorithm, calling the evidence into question.

Vice Article about gunshot detection

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