iiNet High Court of Australia Decison - iiNet Wins
The High Court of Australia today handed down judgment in favour of iiNet in the copyright appeal, dealing with whether an ISP should be liable for copyright infringements of the ISP's customers. Unanimous dismissal. French, Crennan and Kiefel
in one judgment and separate judgment of Gummow and Hayne also dismissing appeal.
"Today the High Court dismissed an appeal by a number of film and television companies from a decision of the Full Court of the Federal Court of Australia. The High Court held that the respondent, an internet service provider, had not authorised the infringement by its customers of the appellants' copyright in commercially released films and television programs."
Summary:
http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdf
Judgment:
http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html
My commentary in The Age
"Today the High Court dismissed an appeal by a number of film and television companies from a decision of the Full Court of the Federal Court of Australia. The High Court held that the respondent, an internet service provider, had not authorised the infringement by its customers of the appellants' copyright in commercially released films and television programs."
Summary:
http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdf
Judgment:
http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html
My commentary in The Age
Class 8: Internet and eCommerce Patents
Reading for the Internet patent class:
- Patent Wars
- What should be patented?
- Do Internet patents threaten ecommerce?
- History of software and Internet patents
- Mayo Medical Laboratories v. Prometheus Laboratories, Inc. (U.S. Supreme Court decision 20 March 2012)
- State Street Bank
- Welcome Real-Time
- Bilski
- CLS Bank v Alice
Also, please read the prior posts located here on patents.
e-book Price Fixing?
Last week, the United States Department of Justice and 16 U.S. States sued Apple and several publishers alleging a conspiracy to raise
retail prices for e-books.
In the Southern District of New
York, the Department sued Apple, Hachette, HarperCollins, Simon &
Schuster, Macmillan, and Penguin, reaching a settlement with Hachette,
HarperCollins, and Simon & Schuster. The Department’s
complaint and proposed final judgment can be found here:
http://www.justice.gov/atr/cases/applebooks.html
The Department’s press release
and statements by Attorney General Holder and Acting Assistant Attorney
General Pozen can be found here:
In the Western District of
Texas, the a number of States sued
Apple, Macmillan, Simon & Schuster, and Penguin. The States' redacted complaint can be found here:
https://www.oag.state.tx.us/newspubs/releases/2012/041112ebooks_complaint.pdf
The States were led by the Texas AG and the Connecticut AG. The States
did not sue HarperCollins or Hachette, but stated they had reached
agreement with the two publishers on
restitution and injunctive releif. Here is the Texas AG’s press
release:
https://www.oag.state.tx.us/oagnews/release.php?id=4026
Class 7: Liability of intermediatories and ISPs
This class deals with liability of intermediaries. For example, is an ISP liable for the conduct of its users? Is a web hosting company liable for the content of others that it hosts? Is TripAdvisor liable for reviews of hotels posted by users? Is Google liable for the content that appears on this blog?
This is a very topical class, with a number of relevant decisions from the past two weeks. Thus, there is a lot of reading for this class.
The main reading for the class is the iiNet case:
Should such intermediaries be liable for the actions of others?
This is a very topical class, with a number of relevant decisions from the past two weeks. Thus, there is a lot of reading for this class.
The main reading for the class is the iiNet case:
The iiNet case is currently on appeal to the High Court of Australia. Oral argument has been heard, and we are waiting for judgment. It is reported that judgment will be handed down on Friday, 20 April. Transcripts and written submissions can be found on the High Court website.
Please also read the very recent case: Australian Competition and Consumer Commission v. Google Inc. [2012] FCAFC 49 decided last week; and compare UK position summarised here.
Also, read the following:
- MegaUpLoad and Kim Dotcom indictment; and users trying to get access to their data and MegaRetrevial
- Viacom v. Google decided by the Second Circuit on 5 April 2012; and see note here (and older notes here: YouTube and note and Summary Judgment)
- Bunt case
- Cooper case
- ACCC v Allergy Pathways and ACCC Press Release
- Stratton Oakmont and follow-up
- Communications Decency Act section 230
- TripAdvisor: Terms; Restaurant Gives Up; tips; and Findlaw note; and another lawsuit
- DMCA - Unintended Consequences White Paper
Google Liable for Misleading Advertisements
The Full Court of the Federal Court of Australia today decided that Google was liable for misleading advertisements placed by advertisers. See Australian Competition and Consumer Commission v. Google Inc. [2012] FCAFC 49.
The 3-0 judgment against Google included the following text:
"An ordinary and reasonable user would conclude from these circumstances that it was Google who was displaying the sponsored link in collocation with the sponsor's URL in response to the user's search. Even if all these circumstances would not be apparent to ordinary and reasonable users, so that Google could not be "seen" by them to be more than a mere conduit, these circumstances show that Google is, in fact, much more than a mere conduit. ... Critical to this conclusion is the fact that the sponsored link is displayed on the screen in response to a user's query which is made by the entry of selected key words. Thus, the user asks a question of Google and obtains Google's response. Several features of the overall process indicate that Google engages in misleading conduct. ...
Google supplies its advertising customers with the ability to select keywords which are expected to be used by persons making enquiries through Google's search engine. The ability of advertisers to select "broad match" keywords enables them to trigger sponsored links through Google's search engine based on known associations which are determined by Google's proprietary algorithm. Although the keywords are selected by the advertiser, perhaps with input from Google, what is critical to the process is the triggering of the link by Google using its algorithms. That is a further reason to conclude that it is Google's conduct as a principal, not merely as a conduit, which is involved in each of the four instances that form the subject matter of this appeal."
The 3-0 judgment against Google included the following text:
"An ordinary and reasonable user would conclude from these circumstances that it was Google who was displaying the sponsored link in collocation with the sponsor's URL in response to the user's search. Even if all these circumstances would not be apparent to ordinary and reasonable users, so that Google could not be "seen" by them to be more than a mere conduit, these circumstances show that Google is, in fact, much more than a mere conduit. ... Critical to this conclusion is the fact that the sponsored link is displayed on the screen in response to a user's query which is made by the entry of selected key words. Thus, the user asks a question of Google and obtains Google's response. Several features of the overall process indicate that Google engages in misleading conduct. ...
Google supplies its advertising customers with the ability to select keywords which are expected to be used by persons making enquiries through Google's search engine. The ability of advertisers to select "broad match" keywords enables them to trigger sponsored links through Google's search engine based on known associations which are determined by Google's proprietary algorithm. Although the keywords are selected by the advertiser, perhaps with input from Google, what is critical to the process is the triggering of the link by Google using its algorithms. That is a further reason to conclude that it is Google's conduct as a principal, not merely as a conduit, which is involved in each of the four instances that form the subject matter of this appeal."
Copyright & Theft
"THE Justice Department is building its case against Megaupload, the hugely popular file-sharing site that was indicted earlier this year on multiple counts of copyright infringement and related crimes. The company’s servers have been shut down, its assets seized and top employees arrested. And, as is usual in such cases, prosecutors and their allies in the music and movie industries have sought to invoke the language of “theft” and “stealing” to frame the prosecutions and, presumably, obtain the moral high ground. ...
The problem is that most people simply don’t buy the claim that illegally downloading a song or video from the Internet really is like stealing a car. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same."
See NY Times opinion article from U.S. law school professor.
The problem is that most people simply don’t buy the claim that illegally downloading a song or video from the Internet really is like stealing a car. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same."
See NY Times opinion article from U.S. law school professor.
Copyright Exceptions To Be Reviewed
Draft terms of reference for an Australian Law Reform Commission (ALRC) inquiry into the operation of copyright exceptions in the digital environment were released today for public comment.
Attorney-General Nicola Roxon said the ALRC will consider whether the exceptions in the Federal Copyright Act are adequate and appropriate in the digital environment. The draft terms of reference reflect the fact that technology is constantly evolving and testing the boundaries of copyright law Ms Roxon said. "In our fast changing, technologically driven world, it important to ensure our copyright laws are keeping pace with change and able to respond to future challenges. We want to ensure this review has enough scope to look at the key areas of copyright so were calling on stakeholders to provide us with their feedback before the ALRC begins its work." The draft terms of reference ask the ALRC to examine the adequacy and appropriateness of a broad range of exceptions in the Copyright Act, including time shifting. The draft terms of reference also direct the ALRC to consider whether exceptions should allow the legitimate non-commercial use of copyright works for uses on the internet such as social networking. The Government has appointed Professor Jill McKeough, University of Technology Sydney Dean of Law, to the ALRC as a Commissioner to lead the copyright inquiry.
Class 6 - Content Regulation
Reading for next Monday's class on Content Regulation.
This class will focus on laws and current issues relating to the regulation of content on the Internet.
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)?
This class will focus on laws and current issues relating to the regulation of content on the Internet.
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)?
Reading:
- Class Text: Chapter 3, Internet and E-commerce Law by Fitzgerald et al
- Content Regulation in the Internet Age
- New classification review
- Online content regulation
- Australian ISPs forced to clean Internet and "mandatory web filter under fire"; and scheme ends
- Hillary Clinton on Internet Freedom
- Anti-piracy v. internet freedom
- China and "China Web Censorship Stirs Scorn", see also Wiki
- Canadian hate speech decision
- Racial Discrimination Act section 18C
- Westboro Baptist Church: article and protest and decision
- Is Cyberspace Burning?
- Lawsuit against Hate Blogger.
Extra Reading if you are interested:
- Regulation of Hate Speech, by Kagan (now on the U.S. Supreme Court)
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