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:

http://www.justice.gov/atr/public/press_releases/2012/282133.htm

http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1204111.html

http://www.justice.gov/atr/public/speeches/282147.htm

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?

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:

• Trial Judge Decision
• Full Court Appeal Decision

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."

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.

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)?

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)

Privacy Issues re Apps

Congressmen Send Inquiries to 34 App Developers Over Privacy Practices:

See MacRumours

Privacy

Please review the following privacy materials for the next lecture.

Australia
General information - OAIC, Australian Privacy Foundation, Electronic Frontiers
How prevalent (and relevant) are privacy concerns in Australia? How would you pursue a privacy complaint?

Legislation - look at the Privacy Act and the National Privacy Principles. Are further reforms on the way?

Case reports - review (and be ready to discuss) some privacy decisions, whether made by the Federal Privacy Commissioner or the Australian Information Commissioner.
You should also be aware of relevant case law in this area - is there a right to privacy at common law? Will there be in the future?

International
Art 17 of ICCPR.

Contractual rights
Look at the privacy policy of at least 2 websites you frequently use. Do you agree to all the terms and conditions?
For example - Google, News

Cookies
Are cookies a privacy concern, or a part of everyday life?

Recent news
Google and more Google
Then Google maps - what have been the different responses around the world?
Facebook and also here

International Online Shopping

U.S. stores are shipping to customers in Australia.

"International visitors are coming to American sites because of lower prices and the availability of products they cannot get in their own countries, according to Forrester. Macy’s has found that Australian shoppers are particularly interested in its trendy clothes, while Canadians want basics like coats, shoes and underwear."  See NYT

What legal issues could arise for the U.S. sellers and the Australian buyers?

Wrong Takedown Demand

What happens if a person issues a copyright take down demand to a file sharing website such as Vimeo or YouTube, and it is wrong.  Potential liability for unjustified threats.
See Bell v. Steele
See also:  SMH Article and Note.

Privacy Lawsuit Against Twitter, Apple, Facebook

Privacy suit filed against Path, Twitter, Apple, Facebook, others
http://cnet.co/FOc5zl or PCMag

Telephone Numbers, Domain Names and Trade Marks

Have a look at this recent decision concerning a trade mark application for a telephone number:
1-800-Flowers.Com, Inc v Registrar of Trade Marks [2012] FCA 209
This case involves a dispute between 1300Flowers and 1800Flowers.
It reminds me of the domain name decisions concerning "Phonewords".  See for example:
the 1300fitness.com.au decision.