A
German court has ruled that YouTube must erase seven contested videos
over copyright issues. However, the decision has failed to settle the
protracted copyright row raging on the Internet.
Hamburg's State Court ruled on Friday that YouTube will have to take
seven videos offline, including "Rivers of Babylon" by Boney M.
The verdict strengthens the position of Germany's royalty collections
body GEMA which has been battling Google-owned YouTube over copyright
issues for years.
The last agreement expired in 2009 and the conflicting parties have
since been at loggerheads over the proper method to collect copyright
fees. However, Friday's verdict is not the landmark ruling which some had
hoped would once and for all settle the contentious issue of copyright
protection in the Internet.
Limited culpability
The Hamburg court decided that Internet platforms like YouTube are not
directly liable for the breach of copyrights committed by users
uploading protected material. However, the platform is now obliged to
"deactivate immediately any illegal videos" once alerted by those
holding the copyright.
Notably, the ruling does not oblige YouTube to check all content that
has already been uploaded to its site – a key GEMA demand.
The judges said YouTube was not the main culprit because it does not
upload or steal any content. Rather it facilitated the copyright
breaches by offering and operating the online platform.
In order to prevent further copyright breaches, the judges called on
YouTube to employ specific software capable of detecting songs in
videos.
Business Method Patents
For tonights class, in addition to the reading listed below, the following recent Australian Patent Office decisions are relevant:
- Celgene Corporation [2012] APO 12
- Discovery Holdings Limited [2011] APO 56 (9th August 2011)
Jail time for Facebook Photos
A New South Wales man has been jailed for six months for posting nude pictures of his former lover on Facebook, Fairfax media has reported.
In the first social networking-related conviction in Australian history, Ravshan ”Ronnie” Usmanov posted six nude photos of his ex-girlfriend on Facebook shortly after they broke up.
The photos showed his ex-girlfriend "nude in certain positions and clearly showing her breasts and genitalia."
"I put the photos up because she hurt me and it was the only thing (I had) to hurt her," Usmanov, 20, was quoted by the Sydney Morning Herald as telling the police.
According to the report, Usmanov also emailed his girlfriend after posting the pictures, saying, “Some of your photos are now on Facebook."
The woman, who cannot be identified, requested Usmanov to take the pictures down but called the police when he refused.
In 2010, a New Zealand man was sentenced to four months in jail for posting a naked photo of his ex-girlfriend on Facebook.
His act was described as one of "irresponsible drunken rage" by presiding judge, who also said, "Technology can't be used in this way. You would do incalculable damage to someone's reputation."Source: Yahoo website
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)
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
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?
"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.
See Bell v. Steele
See also: SMH Article and Note.
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.
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.
For Creators of Games, a Faint Line on Cloning
"Cloning the soul of a game — its gameplay mechanics, design, characters and storyline — is now commonplace in digital marketplaces like Apple’s iOS App Store and Google’s Android.
And while the app stores have offered an unparalleled opportunity for independent software makers to reach customers and make money with an innovative game, they are learning it is just as easy for another game studio to compete with a very similar game."
See Full Article
See Full Article
YAHOO Sues Facebook For Infringing 10 patents
Reuters reports Yahoo has sued Facebook for infringing 10 patents.
Article at:
http://www.reuters.com/article/2012/03/12/us-yahoo-facebook-lawsuit-idUSBRE82B18M20120312
A copy of the lawsuit, with a list of the ten patents, is available at:
http://www.scribd.com/doc/85094882/Yahoo-s-Patent-Lawsuit-Against-Facebook
Class 4 - Spam, crime and phishing
Next week we will be looking at spam, crime and phishing.
Please look at the relevant chapters of the textbook (chapter 11 and part of chapter 3) as well as the following materials.
Spam
Australian law - Spam Act 2003 (Cth)
US law - CAN-SPAM Act
EU directive - Directive on privacy and electronic communications (Article 13)
Australian Communications and Media Authority (ACMA)
Internet industry Spam Code of Practice
How effective are these laws?
Crime
Australian law - Criminal Code 1995 (Cth), Criminal Code 1899 (Qld)
Scale of cybercrime - Symantec report
Australian Federal Police
Lulzsec
Cost - here and here
Is cybercrime underreported? Australian Institute of Criminology
Phishing
Australian government - Scamwatch
Anti Phishing Working Group
Domain-based Message Authentication, Reporting & Conformance
What is the best way to respond to phishing - raising awareness, enacting legislation or cutting off scam emails before they arrive?
Please look at the relevant chapters of the textbook (chapter 11 and part of chapter 3) as well as the following materials.
Spam
Australian law - Spam Act 2003 (Cth)
US law - CAN-SPAM Act
EU directive - Directive on privacy and electronic communications (Article 13)
Australian Communications and Media Authority (ACMA)
Internet industry Spam Code of Practice
How effective are these laws?
Crime
Australian law - Criminal Code 1995 (Cth), Criminal Code 1899 (Qld)
Scale of cybercrime - Symantec report
Australian Federal Police
Lulzsec
Cost - here and here
Is cybercrime underreported? Australian Institute of Criminology
Phishing
Australian government - Scamwatch
Anti Phishing Working Group
Domain-based Message Authentication, Reporting & Conformance
What is the best way to respond to phishing - raising awareness, enacting legislation or cutting off scam emails before they arrive?
Google Play
Email from Google:
Today we introduced Google Play, a new digital content destination available on mobile devices and on the web. With Google Play, users can buy and experience books, music, movies and Android apps, available across their devices. Google Play gives our partners and the ecosystem an integrated entertainment hub for Android and Google users. As part of this launch, Google eBooks and Android Market will become part of Google Play, and users will now get their ebooks from Google Play.
In addition, customers who go to the web ebookstore will be redirected to the Google Play store. While this doesn't change the way consumers read Google eBooks, it does provide a more compelling mobile purchase experience.
We are excited about the opportunities ahead to "play" together.
Google Play team
Helpful Resources:
Google Play overview - http://play.google.com/about
Google Play brand assets - http://www.android.com/branding.html
FAQs - http://support.google.com/books/partner/bin/answer.py?answer=2494942
Today we introduced Google Play, a new digital content destination available on mobile devices and on the web. With Google Play, users can buy and experience books, music, movies and Android apps, available across their devices. Google Play gives our partners and the ecosystem an integrated entertainment hub for Android and Google users. As part of this launch, Google eBooks and Android Market will become part of Google Play, and users will now get their ebooks from Google Play.
In addition, customers who go to the web ebookstore will be redirected to the Google Play store. While this doesn't change the way consumers read Google eBooks, it does provide a more compelling mobile purchase experience.
We are excited about the opportunities ahead to "play" together.
Google Play team
Helpful Resources:
Google Play overview - http://play.google.com/about
Google Play brand assets - http://www.android.com/branding.html
FAQs - http://support.google.com/books/partner/bin/answer.py?answer=2494942
Week 3 - Internet Jurisdiction
The next class is Internet jurisdiction.
Presentation from class is here.
Please read the following:
The relevant chapter in the assigned class text.
Presentation from class is here.
Please read the following:
The relevant chapter in the assigned class text.
Sliding Scale Test:
Zippo case
Effects Test:
Calder v. Jones (US Supreme Court)
Application of Effects Test:
Weather Underground case (and complete court file for this case if interested)
Penguin Group v. American Buddha
Penguin Group v. American Buddha
Australian approach:
Dow Jones v. Gutnick (High Court of Australia)
[Defamation - including Internet cases - background information if interested]
Comment: Determining Internet Jurisdiction
What happens if the Defendant does not show up?
Bell v Steele (No 2) [2012] FCA 62 (7 February 2012) - a case that involves a film made in NY and Australia by Richard Bell from Brisbane, that was uploaded to Vimeo from Australia, and where a person in NY had the film removed from Vimeo.
Could two courts come to an inconsistent result in the same case?
See The Secret litigation:
See The Secret litigation:
Background: The Australian
Australian Trial Judge Decision
Full Court of Federal Court Decision
Note regarding US decision on jurisdiction
Yahoo Facebook Patent War
Yahoo has demanded licensing fees from Facebook for use of its technology, the companies said on Monday, potentially engulfing social media in the patent battles and lawsuits raging across much of the tech sector.
Yahoo has asserted claims on patents that include the technical mechanisms in the Facebook's ads, privacy controls, news feed and messaging service, according to a source briefed on the matter.
Representatives from the two companies met on Monday and the talks involved 10 to 20 of Yahoo's patents, said the source, who was not aware of what specific dollar demands Yahoo may have made for licenses.
See Yahoo and Managing IP
Week 2: The Law of Google
This class will look at Google's business models, and the legal issued raised.
Have a high level look at the following parts of the Google empire:
Reading:
Additional Reading if you have time:
Have a high level look at the following parts of the Google empire:
- Ten Things We Know To Be True
- Google Products
- Google Books
- AdWords and AdWords Help
- AdSense
- New Privacy Policy (and review material linked from this page)
Reading:
- Australian Competition and Consumer Commission v Trading Post Australia [2011] FCA 1086 (22 September 2011), currently on appeal
- Financial Times: Google Privacy Policy Gets Public Airing (2 March 2012)
- Click Fraud
- Advanced Click Fraud
Additional Reading if you have time:
- Official Google Blog
- Google's Inside Search
- 40 Changes for February 2012
- Google Watch Blog
- Prior Blog Posts Concerning Google
- Google's Guide to having your website indexed properly in Google search results
Hosted Domains
IP Addresses
[Student Post]
For those that didn’t know, the world is running out of IP Addresses:
It
has been known for some time that the current structure of IP addresses
is not sufficient for the number of computers/devices
accessing the internet in future. The current structure of IP
addresses, known as IPv4, is structured as xxx.xxx.xxx.xxx (e.g.
192.168.0.1) which limits this number of unique addresses to
4,294,967,296.
With the limit of Ipv4 addresses expected to be exhausted soon and the number of internet connected devices estimated to reach
22 billion by 2020 (IMS Research) it is clear a new IP standard is required.
Thankfully
a group known as the Internet Engineering Task Force (IETF) has been
developing IPv6 since the early 90’s which provides
for 340 undecillon (that’s 340 with 36 zeros) unique addresses. (e.g.
2001:0db8:85a3:0000:0000:8a2e:0370:7334).
However, proliferation of IPv6
has been slow with Google estimating in 2008 that IPv6 uptake among
users was less than 1%. The need for replacement and/or updating of some
hardware and software is partly to blame for
this slow rate of uptake.
So
it seems a significant burden has been placed on the IETF to ensure the
smooth running of the internet through the adoption
of IPv6. That’s a lot of technical control for how the internet of the
future is run. Interestingly the IETF is a volunteer organisation with
no formal membership. Their work is funded by employers of its
volunteers and sponsors including the US National Security
Agency (NSA).
Questions this raises for me:
-
If IPv6 is developed through volunteers Is the internet controlled and owned by everyone?
-
Although ICANN is
no longer US
Government controlled it seems the IETF may be to some extent. If all
roads lead to the US is the US government in control of the internet?
Another way of thinking about this issue might be “Who has the deepest level of technical control over how the internet is run?”
Maybe that’s the IETF.
Google Search Results Misleading
"In the Statement of Claim, the applicant alleges that, in the period from at least early April 2011 to 21 June 2011, the first respondent established a process by which searches for the applicant’s website by reference to the words “Pacific Boating” on the internet using the Google search engine were diverted to websites controlled by or associated with the first respondent."
See Pacific Boating Group Pty Ltd v Freedom Boating Club Pty Ltd [2012] FCA 72 (8 February 2012)
See Pacific Boating Group Pty Ltd v Freedom Boating Club Pty Ltd [2012] FCA 72 (8 February 2012)
Domain Name - Use as a Trademark?
"Since 1995, Sports Warehouse had used the name “Tennis Warehouse” in Australia and did not change its domain name for its online store. Sports Warehouse, for the first time in closing submissions, (while conceding that reputation in the context of s 60 was that of the mark rather than reputation on some other basis), contended that as a significant number of Australian residents visited the Tennis Warehouse website at the domain names “www.tennis-warehouse.com” or “www.tenniswarehouse.com”, by inference they came to know Sports Warehouse by that word, which did not include a TW device. While acknowledging that, once at the website, the customer would encounter the TW device with the TENNIS WAREHOUSE trade mark, counsel for Sports Warehouse submitted that the court could infer, in such circumstances, a “capacity for confusion” at which s 60 was essentially directed.
While it has been held that a domain name can in some circumstances constitute use of a trade mark (see Sports Warehouse v Fry at [146]-[156]), there was no evidence before the court to establish that, as at December 2006, the TENNIS WAREHOUSE mark had acquired a reputation through use of the domain names amongst any consumers or any significant section of the public."
See Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) [2012] FCA 81 (13 February 2012)
While it has been held that a domain name can in some circumstances constitute use of a trade mark (see Sports Warehouse v Fry at [146]-[156]), there was no evidence before the court to establish that, as at December 2006, the TENNIS WAREHOUSE mark had acquired a reputation through use of the domain names amongst any consumers or any significant section of the public."
See Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) [2012] FCA 81 (13 February 2012)
Is Streaming on the Internet a Broadcast?
A recent Australian Federal Court case determined whether whether the scope of the non-exclusive licence of the right to broadcast certain sound recordings granted by a copyright collection agency to radio stations included the right to play those recordings in radio programs transmitted by FM broadcast as a simulcast with transmission of the same program via the Internet.
"The service which transmits the very same radio programs at essentially the same time both to the FM transmitters and beyond and to the web stream servers and beyond is the one service. On the facts before me, the members of CRA who stream their radio programs on the Internet do so only as part of a program package which also simultaneously transmits those programs via frequency modulated radio waves to the consumer’s FM receiver. In truth, the service is but one service being a service which combines various delivery methods or platforms and which delivers the same radio program using the broadcasting services band. It falls within the exception to the exclusion set out in the Ministerial Determination.
Therefore, in my view, the service provided by the members of CRA is a broadcasting service.
That being so, the simulcast transmission of the same radio program via the FM waves and the Internet is also a “broadcast” within the current definition of that term in s 10(1) of the Copyright Act and, for that reason, is within the scope of the licence which PPCA agreed to grant to the members of CRA and which it did grant from time to time to members of CRA upon the terms and conditions set out in the Member Agreement."
See Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93 (15 February 2012)
"The service which transmits the very same radio programs at essentially the same time both to the FM transmitters and beyond and to the web stream servers and beyond is the one service. On the facts before me, the members of CRA who stream their radio programs on the Internet do so only as part of a program package which also simultaneously transmits those programs via frequency modulated radio waves to the consumer’s FM receiver. In truth, the service is but one service being a service which combines various delivery methods or platforms and which delivers the same radio program using the broadcasting services band. It falls within the exception to the exclusion set out in the Ministerial Determination.
Therefore, in my view, the service provided by the members of CRA is a broadcasting service.
That being so, the simulcast transmission of the same radio program via the FM waves and the Internet is also a “broadcast” within the current definition of that term in s 10(1) of the Copyright Act and, for that reason, is within the scope of the licence which PPCA agreed to grant to the members of CRA and which it did grant from time to time to members of CRA upon the terms and conditions set out in the Member Agreement."
See Phonographic Performance Company of Australia Ltd v Commercial Radio Australia Limited [2012] FCA 93 (15 February 2012)
Class Timetable
The first class is this Thursday, 1 March, in room Z308. Then, we are changing to Monday nights, so the next class will be Monday 5 March.
Please see the Blackboard announcement, and note:
1) If you are unable to complete the unit on a Monday night, you can with choose an
alternative Semester 1 unit up until Friday 9 March.
2) You can withdraw from Semester 1 units until March 23.
First Class
The first class for LWN117 for semester 1, 2012, is Thursday, 1 March 2012, at 6pm. It appears that the first class is in Z308. (The class was originally scheduled for Mondays. The first class is on Thursday. Later classes may be moved back to Mondays.)
Google Goggles
Later this year, Google is expected to start selling eyeglasses that will project information, entertainment and, this being a Google product, advertisements onto the lenses. The glasses are not being designed to be worn constantly — although Google engineers expect some users will wear them a lot — but will be more like smartphones, used when needed, with the lenses serving as a kind of see-through computer monitor. ...
Several people who have seen the glasses, but who are not allowed to speak publicly about them, said that the location information was a major feature of the glasses. Through the built-in camera on the glasses, Google will be able to stream images to its rack computers and return augmented reality information to the person wearing them. For instance, a person looking at a landmark could see detailed historical information and comments about it left by friends. ...
“In addition to privacy, it’s also going to change real-world advertising, where companies can virtually place ads over other people’s ads,” he said. “I’m really interested in seeing how the government can successfully regulate augmented reality in this sense. They are not really going to know what people are seeing behind those glasses.”
See NY Times
Several people who have seen the glasses, but who are not allowed to speak publicly about them, said that the location information was a major feature of the glasses. Through the built-in camera on the glasses, Google will be able to stream images to its rack computers and return augmented reality information to the person wearing them. For instance, a person looking at a landmark could see detailed historical information and comments about it left by friends. ...
“In addition to privacy, it’s also going to change real-world advertising, where companies can virtually place ads over other people’s ads,” he said. “I’m really interested in seeing how the government can successfully regulate augmented reality in this sense. They are not really going to know what people are seeing behind those glasses.”
See NY Times
Interview with Kim Dotcom Lawyer
Here is an interview from NZ TV with Mr Kim Dotcom's U.S. lawyer. Can the operator of a file storage system be criminally liable for copyright infringement of its users? Or is there more to this case than this?
China Blogging
A
spokesperson for the Beijing Internet Propaganda Management Office
announced in a recent press conference that Beijing aims to complete
mandatory real
name registration for microblog platforms by March 16. The Office has
also established a microblog development expert advisory group composed
of experts from Tsinghua University, China University of Political
Science and Law, the People's Daily Online's Public
Opinion Testing Center, China Labs, and the Data Center of the China
Internet (DCCI).
Chinese internet company Sina launched a real name verification function to its user registration form as of January 1, 2012. The new function compares user-submitted data, such as name and national ID card number, and if a user's information does not match comparison records the user can only browse existing posts. In order to be able to post content, users must resubmit correct information. To date, 3 mlllion new users have submitted real name information, and single day registration volume continues to grow. For existing users, Sina will offer additional functionality and privileges to users that submit real name credentials, implement a user trust ratings system, and this week will launch a verified real name ID badge. Sohu previously launched a promotional campaign, offering 20 mln Sohu Video monthly subscription cards and RMB 1 mln worth of mobile phone recharge cards to users who submit real name data early. Online real estate site Soufun offered prizes, including free vacation housing in 13 popular tourist destination cities. Users who do not register by March 16 will lose their posting and reposting privileges.
Regarding user data security, a Sina spokesperson said that users will be notified by mobile phone or other channels if someone logs into their account from a different location. If any anomalies occur, users can lock their account from their mobile phone even if someone else is logged in. A spokesperson for Sohu said that Sohu does not store any user data after authenticating the user's identity.
Source: Marbridge
Chinese internet company Sina launched a real name verification function to its user registration form as of January 1, 2012. The new function compares user-submitted data, such as name and national ID card number, and if a user's information does not match comparison records the user can only browse existing posts. In order to be able to post content, users must resubmit correct information. To date, 3 mlllion new users have submitted real name information, and single day registration volume continues to grow. For existing users, Sina will offer additional functionality and privileges to users that submit real name credentials, implement a user trust ratings system, and this week will launch a verified real name ID badge. Sohu previously launched a promotional campaign, offering 20 mln Sohu Video monthly subscription cards and RMB 1 mln worth of mobile phone recharge cards to users who submit real name data early. Online real estate site Soufun offered prizes, including free vacation housing in 13 popular tourist destination cities. Users who do not register by March 16 will lose their posting and reposting privileges.
Regarding user data security, a Sina spokesperson said that users will be notified by mobile phone or other channels if someone logs into their account from a different location. If any anomalies occur, users can lock their account from their mobile phone even if someone else is logged in. A spokesperson for Sohu said that Sohu does not store any user data after authenticating the user's identity.
Source: Marbridge
Twitter Being Sued For Defamation
Twitter is being sued for defamation by a Melbourne man, Joshua Meggitt, who was wrongly identified as the author of a “hate blog”.
See story here and SMH.
See story here and SMH.
Misleading Online Reviews
A blog entry from the NY Times: Discounting Bad Reviews
"Are reviews of products and services on the Internet believable? Probably not. In the latest case, a merchant offered a rebate in exchange for getting a customer to revise a rating, but it says that is not the way it usually does things."
"Are reviews of products and services on the Internet believable? Probably not. In the latest case, a merchant offered a rebate in exchange for getting a customer to revise a rating, but it says that is not the way it usually does things."
Advertising Financial Products on the Internet
ASIC has today released RG 234, Advertising financial products and advice services: Good practice guidance, to assist promoters in complying with their legal obligations when advertising financial products
and services. See the
media release - 14 February 2012, for further information and related material.
It applies to advertising on the Internet, via Twitter and the like. See section RG 234.115
and following.
What is interesting is that the Guidelines also apply to publishers (such as newspapers), Internet sites, and aggregators and comparison websites. See Section E and RG234.164 and following.
"While the primary responsibility for advertising material rests with the organisation placing the advertisement, the publisher may also have some responsibility for the content of an advertisement."
It applies to advertising on the Internet, via Twitter and the like. See section RG 234.115
and following.
What is interesting is that the Guidelines also apply to publishers (such as newspapers), Internet sites, and aggregators and comparison websites. See Section E and RG234.164 and following.
"While the primary responsibility for advertising material rests with the organisation placing the advertisement, the publisher may also have some responsibility for the content of an advertisement."
Online Privacy
A good comment: "The piracy of online privacy".
"Online privacy doesn’t exist. It was lost years ago. And not only was it taken, we’ve all already gotten used to it. Loss of privacy is a fundamental tradeoff at the very core of social networking. Our privacy has been taken in service of the social tools we so crave and suddenly cannot live without. If not for the piracy of privacy, Facebook wouldn’t exist. Nor would Twitter. Nor even would Gmail, Foursquare, Groupon, Zynga, etc. And yet people keep fretting about losing what’s already gone...."
"Online privacy doesn’t exist. It was lost years ago. And not only was it taken, we’ve all already gotten used to it. Loss of privacy is a fundamental tradeoff at the very core of social networking. Our privacy has been taken in service of the social tools we so crave and suddenly cannot live without. If not for the piracy of privacy, Facebook wouldn’t exist. Nor would Twitter. Nor even would Gmail, Foursquare, Groupon, Zynga, etc. And yet people keep fretting about losing what’s already gone...."
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