I have just finished reading an excellent book, called "The Master Switch" by Tim Wu. It is not a legal book, but more of an economic history. It has a number of references to patent law. Well worth reading.
A blog relating to Internet legal issues by Professor John Swinson, University of Queensland
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Privacy
The Australian Privacy Commissioner has released a revised guide to "reasonable steps" to protect personal information.
Comments due 27 August.
"Effective ICT security requires protecting both computer hardware (the physical devices that make up a computer system) as well as the data (including personal information) that the computer hardware holds from misuse, interference, loss, unauthorised access, modification and disclosure. However, ICT security measures should also ensure that the hardware and the information stored on it remain accessible and useful to legitimate users."
Letter from Amazon
Amazon wrote a detailed letter to authors, regarding e-book pricing. See full text of letter here.
The letter asks authors to email Hachette's CEO directly.
WSJ article about the letter.
The letter asks authors to email Hachette's CEO directly.
WSJ article about the letter.
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.
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.
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:
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.
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
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.
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.
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”
Signature in Email
An interesting recent Federal Circuit Court decision to the
effect that a person’s name at the bottom of an email was a signature -
Austral-Asia Freight Pty Ltd v Turner [2013] FCCA 298
http://www.austlii.edu.au/au/cases/cth/FCCA/2013/298.html
Austral-Asia Freight Pty Ltd v Turner [2013] FCCA 298
http://www.austlii.edu.au/au/cases/cth/FCCA/2013/298.html
Lawsuit over bad Yelp review
See this story regarding a lawsuit by a builder against his customer who posted a bad review on Yelp.
The article includes the following:
The article includes the following:
For a while, online reviewers have been free to say whatever they like about businesses without much in the way of fact-checking by the review websites that host their comments.
And because review sites like TripAdvisor, Yelp and Angie’s List often refuse to remove negative reviews without a court injunction, many businesses resort to responding to reviewers personally through the sites.
But others, like Deitz, have decided to cut out the middle man and lawyer up — no doubt because sites like Yelp are exerting increasing influence over consumers' buying decisions, from which plumber to hire to fix a leaky toilet to which spa to patronise to get a massage.
Thanks to their efforts, anonymity as an online reviewer may be a thing of the past.
In a major win for business owners in the US, a Virginia appeals court ruled earlier this month that Yelp must reveal the identities of seven users who wrote negative reviews of a local carpet cleaning business.
In that case, the customers weren't actually patrons of the shop, business owner claimed, which made their reviews false statements rather than opinions protected by the First Amendment. Yelp wasn't happy about the ruling, but they forked over the names anyway.
Popularity of new gTLDs
This is an interesting set of infographics regarding the new gTLDs.
See www.webmechanix.com/how-to-react-to-new-generic-top-level-domains
See www.webmechanix.com/how-to-react-to-new-generic-top-level-domains
COPYRIGHT POLICY, CREATIVITY, AND INNOVATION IN THE DIGITAL ECONOMY
Lessig v. Liberation over takedown notice
Professor Lessig has sued Australian music label Liberation in the U.S. in relation to a computer generated take down notice sent to YouTube, to take down video of Lessig giving a seminar in Asia that included music licensed exclusively to Liberation in Australia.
If this case proceeds, there are interesting jurisdictional and fair use / fair dealing points that arise. If the use of the music was fair use in the U.S., but not fair dealing in Australia, and the video is available in Australia, one would assume that there is copyright infringement in Australia.
Brisbane Times article
The video in question
EFF press release
If this case proceeds, there are interesting jurisdictional and fair use / fair dealing points that arise. If the use of the music was fair use in the U.S., but not fair dealing in Australia, and the video is available in Australia, one would assume that there is copyright infringement in Australia.
Brisbane Times article
The video in question
EFF press release
Google and Defamation and Jursidiction
Google Australia has a defamation case against it tossed out, on the basis that it is Google Inc. that is operating the search engine and Blogger.
See SMH
See SMH
Informational Privacy on the Web
A Data Broker Offers a Peek Behind the Curtain
The Acxiom Corporation is to open a Web site that will allow individual consumers to see some of the information that the company has collected about them. http://nyti.ms/17slfwv
Computer Implemented Method Patentable in Australia
RPL Central Pty Ltd v Commissioner of Patents [2013] FCA 871
Broadly, the claimed invention related to the assessment of the competency or qualifications of individuals with respect to recognised standards. It was implemented using a computer.
Claim 1 included the following steps:
The Federal Court of Australia today determined that this claim recited patentable subject matter.
Broadly, the claimed invention related to the assessment of the competency or qualifications of individuals with respect to recognised standards. It was implemented using a computer.
Claim 1 included the following steps:
(a) a computer retrieving via the internet from a remotely-located server a plurality of assessable criteria associated with the recognised qualification standard, said criteria including one or more elements of competency, each of which is associated with one or more performance criteria;
(b) the computer processing the plurality of assessable criteria to generate automatically a corresponding plurality of questions relating to the competency of an individual to satisfy each of the elements of competency and performance criteria associated with the recognised qualification standard;
(c) an assessment server presenting the automatically-generated questions via the internet to a computer of an individual requiring assessment; and
(d) receiving from the individual via their computer a series of responses to the automatically-generated questions, the responses including evidence of the individual’s skills, knowledge and experience in relation to each of the elements of competency and performance criteria, wherein at least one said response includes the individual specifying one or more files on their computer which are transferred to the assessment server.
The Federal Court of Australia today determined that this claim recited patentable subject matter.
Thredbo.com Decision
The Federal Court recently released its decision in the case brought by the owners of thredbo.com.au against thredbo.com.
The decision is: Kosciuszko Thredbo Pty Limited v ThredboNet Marketing Pty Limited [2013] FCA 563
The decision is: Kosciuszko Thredbo Pty Limited v ThredboNet Marketing Pty Limited [2013] FCA 563
realestate.com.au Federal Court decision
On Friday, the Federal Court of Australia handed down its decision in the realestate.com.au v. realestate1.com.au case.
The decision is [2013] FCA 539.
The case concerned a generic term, that was used as a domain name, but where significant advertising had built up recognition of the brand. The Applicant lost on consumer protection grounds but was successful in relation to trade mark infringement. The case shows the risks of using a dictionary term as a brand, and the importance of a trade mark registration.
"245 However that observation about the ordinary case does not really address (as neither Perram J nor Chesterman J were called upon to address) a situation where the highly descriptive nature of the second-level domain (“realestate”) makes a suffix such as “.com.au” essential to brand or name recognition. Consumers with some familiarity with realestate.com.au as a brand are likely to look beyond “realestate” and to the entire domain name in order to establish identity. A real danger of confusion again arises because in the scanning process which may occur on a search results page, some consumers will miss the indistinctive “1”. I have therefore concluded that the use of “realestate1.com.au” as part of an internet address on a search results page, constituted the use by Real Estate 1 of a mark that was deceptively similar to REA’s realestate.com.au trade marks."
The decision is [2013] FCA 539.
The case concerned a generic term, that was used as a domain name, but where significant advertising had built up recognition of the brand. The Applicant lost on consumer protection grounds but was successful in relation to trade mark infringement. The case shows the risks of using a dictionary term as a brand, and the importance of a trade mark registration.
"245 However that observation about the ordinary case does not really address (as neither Perram J nor Chesterman J were called upon to address) a situation where the highly descriptive nature of the second-level domain (“realestate”) makes a suffix such as “.com.au” essential to brand or name recognition. Consumers with some familiarity with realestate.com.au as a brand are likely to look beyond “realestate” and to the entire domain name in order to establish identity. A real danger of confusion again arises because in the scanning process which may occur on a search results page, some consumers will miss the indistinctive “1”. I have therefore concluded that the use of “realestate1.com.au” as part of an internet address on a search results page, constituted the use by Real Estate 1 of a mark that was deceptively similar to REA’s realestate.com.au trade marks."
Hotel Executive In Trouble over TripAdvisor reviews
ASX rules on Social Media
The Australian Stock Exchange has continuous disclosure rules. See Guidance Note 8, which has guidance about social media. See also BRW article.
Are Online Reviews Reliable?
A recent newspaper article discusses whether online review websites, such as TripAdvisor, are reliable.
See Bad Reputation.
See Bad Reputation.
U.S. Patent Decision - The Alice Case
CLS Services v. Alice Corporation was decided yesterday by the Court of Appeals for the Federal Circuit, en banc. See Judgment. Alice Corporation is an Australian company. Its U.S. patent was held to be invalid as it did not claim patentable subject matter.
"Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101."
There were a number of judgments. The footnote to one judgment states:
"No portion of any opinion issued today other than our Per Curiam Judgment garners a majority. The court is evenly split on the patent eligibility of the system claims. Although a majority of the judges on the court agree that the method claims do not recite patent eligible subject matter, no majority of those judges agrees as to the legal rationale for that conclusion. Accordingly, though much is published today discussing the proper approach to the patent eligibility inquiry, nothing said today beyond our judgment has the weight of precedent."
"Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101."
There were a number of judgments. The footnote to one judgment states:
"No portion of any opinion issued today other than our Per Curiam Judgment garners a majority. The court is evenly split on the patent eligibility of the system claims. Although a majority of the judges on the court agree that the method claims do not recite patent eligible subject matter, no majority of those judges agrees as to the legal rationale for that conclusion. Accordingly, though much is published today discussing the proper approach to the patent eligibility inquiry, nothing said today beyond our judgment has the weight of precedent."
Copyright in the Digital Era
A recent note on copyright:
Seven Copyright Principles for the Digital Era
By John Villasenor. Brookings Institution, February 5, 2013
YouTube redesign
YouTube has had a revamped look for channels in limited beta testing since early February, but it's now ready to spread the new-layout love to interested folks. Dubbed "One Channel," the design refresh places an emphasis on making a user's page look slick across different screen sizes and devices, adapting its style for the occasion -- yes, even on TVs. Along with a look that provides more visual breathing room, a wide image called Channel Art adorns the top of a page, giving the whole affair a stronger Google+ vibe. Now, channel owners can even snag a visitor's attention with a trailer that'll greet them if they aren't a subscriber. The refresh also introduces the ability to organize video playlists with custom sections. Raring to take Mountain View up on the fresh looks? Jab the second source link to get started. If you change your mind after taking the plunge, however, Google's letting users switch back to the old format for a limited time.
Why do you think that Google is doing this?
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How should damages be assessed for privacy and cybersecurity breaches
Listen to this podcast where I discuss how damages should be assessed in privacy and cybersecurity lawsuits. The Lawyers Weekly Show host J...
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The United Nations intellectual property agency (WIPO) is the latest front in the US-China trade war. http://www.theage.com.au/world/sad-am...
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The issue of content regulation in China was mentioned in this blog last year . In the last few weeks, this issue has once again pushed into...
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Finally, what is called direct registration of domain names is coming to Australia. See https://www.auda.org.au/statement/australias-interne...