Online Copyright Infringement

The Australian Government has today released the Online Copyright Infringement Discussion Paper and is seeking public submissions on the draft proposals designed to address online piracy.

Australia has one of the highest rates of online copyright piracy in the world. This has a significant impact on Australia’s creative industries, including music, television, cinema, software, broadcast and publishing industries, which employ more than 900,000 people and generates more than $90 billion in economic value each year.

The ease with which copyrighted content can be digitised and distributed online means there is no easy solution to preventing online copyright infringement.  International experience has shown that a range of measures are necessary to reduce piracy and ensure that we can continue to take full advantage of the legitimate opportunities to create, provide and enjoy content in a digital environment. 

Everyone has a role to play in reducing online copyright infringement. Rights holders need to ensure that content can be accessed easily and at a reasonable price. Internet service providers (ISPs) can take reasonable steps to ensure their systems are not used to infringe copyright. Consumers can do the right thing and access content lawfully.

The Government’s preference is to create a legal framework that will facilitate industry cooperation to develop flexible and effective measures to combat online piracy. This Discussion Paper seeks the views of the public and stakeholders on proposals to establish such a legal framework.

Importantly, the Government expects that consumer interests will be taken into account in the development of any industry scheme or commercial arrangements.

The Discussion Paper is available on the Online copyright infringement—public consultation page of the Attorney-General’s Department website. Submissions are sought by end of 1 September 2014 and can be emailed to copyrightconsultation@ag.gov.au.

From King & Wood Mallesons:

The proposals are of most interest to copyright owners, to ISPs and to online intermediaries, although the proposed authorisation amendment to the Copyright Act 1968 (Cth) may have a broader application.

In this alert we look at the three proposals outlined in the Discussion Paper, and further questions raised within it.

Read more

Trademarks and website headings

In a decision by the Full Court of the Federal Court of Australia, it was decided that use of the generic term "Lift Shop" in the title of a webpage was not trademark infringement.

See:  Lift Shop v. Easy Living Home Elevators [2014] FCAFC 75

See also comment.

A Town Like Alice

The U.S. Supreme Court decided the Alice Corp v. CLS Bank patent case today.

In a unanimous decision authored by Justice Thomas, the Supreme Court today affirmed the Federal Circuit’s en banc decision invalidating the patents asserted by Alice Corporation against CLS Bank International as ineligible for patent protection under 35 U.S.C. §101 because they are directed to an abstract idea. See Alice Corporation Pty. Ltd. v. CLS Bank International et al. (U.S. June 19, 2014). 

In an opinion by Justice Thomas, today’s Supreme Court opinion held that:

[T]he claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention.

In applying Mayo step one, the Court determined that Alice’s claims were drawn to the abstract concept of intermediated settlement (i.e., the use of a third party to mitigate settlement risk). Rejecting Alice’s arguments that the abstract-ideas category is confined to preexisting fundamental truths that exist apart from any human action, the Court ruled that intermediated settlement has long been a fundamental practice in our system of commerce, and recognized that Alice’s claims to intermediated settlement were not meaningfully distinguishable from the risk hedging claims it previously held to be abstract in Bilski v. Kappos, 561 U.S. 593 (2010).

In a brief concurring opinion, Justice Sotomayor, joined by Justices Ginsburg and Breyer, opined that claims to business methods are ineligible per se for patent protection, because they do not qualify as a process under 35 U.S.C. §101.

See note from WilmerHale and prior blog posts below.

Machines v Lawyers

"Some observers, not implausibly, blame the recession for these developments. But the plight of legal education and of the attorney workplace is also a harbinger of a looming transformation in the legal profession. Law is, in effect, an information technology—a code that regulates social life. And as the machinery of information technology grows exponentially in power, the legal profession faces a great disruption not unlike that already experienced by journalism, which has seen employment drop by about a third and the market value of newspapers devastated. The effects on law will take longer to play themselves out, but they will likely be even greater because of the central role that lawyers play in public life."

See Full Article - Machines v. Lawyers

Privacy in the Digital Era

The Australian Government announces the release of the Discussion Paper for this Inquiry, Serious Invasions of Privacy in the Digital Era (DP 80).  

The Discussion Paper provides a detailed account of ALRC research so far, and includes 48 proposals and a number of questions for people to consider and provide feedback on. The ALRC is proposing a model for a new statutory cause of action for serious invasions of privacy to be included in a new Commonwealth Act, and also is putting forward other alternative proposals to strengthen privacy protection.

The Discussion Paper is available in HTML, PDF, and as an ebook.

·         See Media Release >>

·         See Discussion Paper >>

Software and Internet patents

On Monday, the United States Supreme Court is scheduled to hear arguments in what has been described as the most important intellectual property case in a decade: Alice v. CLS Bank.  One party in this case is an Australian company, that owns the patent in question.

Prior blog posts are here and here. 

A NYTimes opinion article is worth reading.

Cloud Speeds

An interesting non-legal article looking at the various Cloud services and comparing speeds:  ComputerWorld.

Who Owns the Internet?

Two Harvard Law School experts — Jonathan Zittrain '95, Professor of Law and Faculty Co-Director, Berkman Center for Internet and Society, and Susan Crawford, John A. Reilly Visiting Professor in Intellectual Property — weigh in on a lawsuit in federal court that may decide whether Web access remains open and neutral.  Read More.  

Unravel the law

A great new legal search tool from Stanford:  Ravel.

Privacy Guidelines in Australia

The Privacy Guidelines are no longer consultation drafts – the final version was released today (link below).

They have reversed their view on the application of the Privacy Act to foreign website operators.  So much so that the guidelines now conclude that “Where an entity merely has a website that can be accessed from Australia, this is generally not sufficient to establish that the website operator is ‘carrying on a business’ in Australia”

Privacy Guidelines