Today, the High Court of Australia decided that Google must go to trial to determine whether Google is liable for defamation regarding its display of search engine results and also in respect of Google's autocomplete function.
See KWM article Google this: The High Court allows Google to be sued for defamation
See Sydney Morning Herald article
See HCA judgment Trkulja v Google LLC [2018] HCA 25
.au Domain Names - Policy Review
auDA has constituted a policy review panel to review virtually all domain name policies in Australia, as well as to recommend a policy to implement direct registration in Australia. I am chair of this policy review panel.
See https://www.auda.org.au/policies/panels-and-committees/2017-policy-review-panel/
I strongly urge you to review the issues papers and to provide feedback.
Direct registration will allow registration of domain names in Australia such as cyberspace.au.
There are other reforms being discussed. See the Issues Paper that was published at the end of January.
See https://www.auda.org.au/policies/panels-and-committees/2017-policy-review-panel/
I strongly urge you to review the issues papers and to provide feedback.
Direct registration will allow registration of domain names in Australia such as cyberspace.au.
There are other reforms being discussed. See the Issues Paper that was published at the end of January.
Liability of Intermediaries for copyright infringement
At the end of last year, the Federal Court of Australia issued a judgment in against the Redbubble platform, in favour of Pokemon.
The judgment is here: Pokémon Company International, Inc. v Redbubble Ltd [2017] FCA 154
This is an important copyright and consumer protection law case. Redbubble recently appealed (and its seems that their appeal was lodged outside of the appeal window).
There is also a similar case pending, involving the Hell's Angels.
A good summary is located on the IP Whiteboard blog.
The judgment is here: Pokémon Company International, Inc. v Redbubble Ltd [2017] FCA 154
This is an important copyright and consumer protection law case. Redbubble recently appealed (and its seems that their appeal was lodged outside of the appeal window).
There is also a similar case pending, involving the Hell's Angels.
A good summary is located on the IP Whiteboard blog.
Canadian Update
This blog post has a good summary of relevant legal developments in Canada over the past year.
https://www.canadiantechlawblog.com/2018/01/17/technology-law-highlights-2017-year-in-review/
https://www.canadiantechlawblog.com/2018/01/17/technology-law-highlights-2017-year-in-review/
Google Found Responsible for Defamation
The South Australian Full Court decided against Google Inc. in the recent case of Google v. Duffy. See http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SASCFC/2017/130.html
Google's search results included defamatory material. Google was found to be a secondary publisher.
Case note here.
Google's search results included defamatory material. Google was found to be a secondary publisher.
Case note here.
AirBNB Hell
An interesting website that points out the risks of using AirBNB for both hosts and guests, www.airbnbhell.com
Digital Watermarks on Printed Documents
"The question is how the government identified her so quickly, and the answer may be that she was inadvertently outed by the Intercept itself. That’s because the website posted an image of the leaked document containing an almost-invisible code applied by the printer that produced the document sent to the Intercept. The digital watermark identified the printer model and serial number, along with the time and date then document was printed out."
See LA Times
See LA Times
Meriton found guilty of manipulating TripAdvisor Reviews
Serviced apartment and hotel operator Meriton was found to have engaged in illegal conduct by manipulating TripAdvisor reviews. The ACCC sued Meriton and won. The ACCC brought actions under s18 and the little used s34 of the Australian Consumer Law.
See judgment at: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca1305
According to the judgment, Meriton manipulated TripAdvisor in two ways:
See judgment at: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca1305
According to the judgment, Meriton manipulated TripAdvisor in two ways:
"The respondent (Meriton) conducts a business of offering serviced apartment accommodation at (at least) 13 properties in Queensland and New South Wales. These properties appear on the TripAdvisor website. During the period November 2014 to October 2015 (the relevant period), Meriton participated in the Review Express service offered by TripAdvisor. On a weekly basis, Meriton provided TripAdvisor with the email addresses of guests who had stayed at its properties and TripAdvisor sent email invitations to these guests to post a review. However, rather than sending TripAdvisor the email addresses of all guests who had stayed at its properties (other than those who had requested that their details not be provided), Meriton adopted the following two practices:
(a) The first practice was to add the letters “MSA” (which stand for Meriton Serviced Apartments) to the front of the email addresses of certain guests. This rendered the email address invalid. This practice was applied to guests who had made a complaint or were otherwise considered likely to have had a negative experience at a Meriton property. I will refer to this practice as the MSA-masking practice.
(b) The second practice was to withhold from TripAdvisor the email addresses of all the guests who had stayed at a property during a period of time when there had been a major service disruption (such as the lifts not working, no hot water, etc). I will refer to this practice as the bulk withholding practice."
Alleged Illegal Conduct by Apple
Apple is being sued in Australia by the ACCC in relation to the Error 53 software fault in iPhones. When this fault bricked iPhones and iPads, Apple refused to fix the problem where third parties had done prior repairs.
The latest judgment on a procedural motion is http://www.judgments.fedcourt
The latest judgment on a procedural motion is http://www.judgments.fedcourt
Regulation of Automated Vehicles in Australia
The Australian National Transport Commission has released a discussion paper
Regulatory options to assure automated vehicle safety in Australia. The paper identifies 4 regulatory options for a safety assurance system for automated vehicle technology.
Submissions for this discussion paper are open until 4pm, Friday, 28 July 2017.
The NTC expects to present it preferred regulatory option to the Minister in November 2017.
Full
media release.
Metatags and Google advertisements found to be trademark infringements
In an appeal decision handed down on Friday, the Full Court of the Federal Court of Australia has affirmed a trial judge's decision that metatags and Google advertisements were trademark infringements.
The case is Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2017] FCAFC 56.
The case concerned a real estate agent advertising short term accommodation, using the name of a nearby Accor hotel (which was a registered trademark) to attract Internet users to the real estate agent's booking website.
The court confirmed findings of the trial judge that the following were trademark uses and trademark infringements: use of of the trademark in the domain name, use in metatags for the website, use in headings for the website, use in email addresses, and use in Google advertisements.
The case is Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2017] FCAFC 56.
The case concerned a real estate agent advertising short term accommodation, using the name of a nearby Accor hotel (which was a registered trademark) to attract Internet users to the real estate agent's booking website.
The court confirmed findings of the trial judge that the following were trademark uses and trademark infringements: use of of the trademark in the domain name, use in metatags for the website, use in headings for the website, use in email addresses, and use in Google advertisements.
First Amendment and Social Media
Social media and First Amendment issues were debated in oral argument before the US Supreme Court in Packingham v. North Carolina.
See: http://www.scotusblog.com/case-files/cases/packingham-v-north-carolina/
Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”
In oral argument on 27 February 2017, Justice Kennedy drew an analogy between social media and the public square. Justice Ginsburg said restricting access to social media would mean being cut off from a very large part of the marketplace of ideas. The First Amendment includes not only the right to speak, but the right to receive information.
See: http://www.scotusblog.com/case-files/cases/packingham-v-north-carolina/
Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”
In oral argument on 27 February 2017, Justice Kennedy drew an analogy between social media and the public square. Justice Ginsburg said restricting access to social media would mean being cut off from a very large part of the marketplace of ideas. The First Amendment includes not only the right to speak, but the right to receive information.
It is hard to control where your ads will appear online
Advertisers are leaving YouTube, because their advertisements are being placed in close proximity to hate speech and other offensive material.
See NY Times story, Perils of Online Ads
See NY Times story, Perils of Online Ads
Book - The Last Days of Night
An interesting book, a novel, about a new lawyer in New York, Paul Cravath, who founded one of NY's best law firms, and his representation of Westinghouse against Edison in patent disputes. The Last Days of Night. It shows that patent disputes have been going on for 100 years whenever new technology suddenly blossoms.
GST Tax obligations for non-Australian offshore sellers
Recently, the Australian Taxation Office released a draft GST ruling (GSTR 2016/D1)
to
assist foreign suppliers of digital and other intangible products to
determine when they will be liable to Australian GST (an indirect tax like VAT) on supplies they
make to Australian consumers.
The
draft GST ruling explains what steps suppliers should take to collect
evidence to establish whether or not the recipient of a supply is an
Australian consumer.
Assaults on Privacy in the USA
A good article in Harvard Magazine titled "How surveillance changes people's behaviour: assaults on privacy in America." See article here.
EU ePrivacy
On 10 January 2017, the European Commission published a
Proposal for a Regulation could have significant implications for Internet-based services and technologies.
The Proposal seeks to revise the current EU ePrivacy Directive. It creates strict new rules
regarding confidentiality of electronic communications, including
content and metadata. In addition, the Proposal amends the current rules
on the use of cookies and similar technologies, and direct marketing.
The rules apply to EU and non-EU companies providing
services in the EU, and are backed up by significant enforcement
powers—fines of up to four percent of a company's global turnover.
The Proposal is the next major step in the EU's review of its data protection legal framework and follows the adoption of the
General Data Protection Regulation (GDPR) in April 2016.
United States Copyright Office Releases Report on Software-Enabled Consumer Products
Yesterday, the
U.S. Copyright Office released a report titled "Software-Enabled
Consumer Products."
The report follows a year-long process, during which the Office studied how copyright law interacts with software-enabled consumer products, from cars, to refrigerators, to mobile phones, to thermostats and the like.
The report explores the various legal doctrines that apply to this subset of software, which is increasingly present in everyday life, including important copyright doctrines such as fair use, merger, scènes à faire, first sale, and the section 117 exemptions. The report focuses on specific issues raised in the public comments and hearings, including how copyright law affects licensing, resale, repair and tinkering, security research and interoperability.
The Copyright Office's report found that current legal doctrines support a wide range of legitimate uses of the embedded software in consumer products while also recognizing the importance of copyright protection to the creation and distribution of innovative products. The report does not recommend legislative changes at this time.
The full report and executive summary are available on the Copyright Office's website at http://copyright.gov/policy/software/.
The report follows a year-long process, during which the Office studied how copyright law interacts with software-enabled consumer products, from cars, to refrigerators, to mobile phones, to thermostats and the like.
The report explores the various legal doctrines that apply to this subset of software, which is increasingly present in everyday life, including important copyright doctrines such as fair use, merger, scènes à faire, first sale, and the section 117 exemptions. The report focuses on specific issues raised in the public comments and hearings, including how copyright law affects licensing, resale, repair and tinkering, security research and interoperability.
The Copyright Office's report found that current legal doctrines support a wide range of legitimate uses of the embedded software in consumer products while also recognizing the importance of copyright protection to the creation and distribution of innovative products. The report does not recommend legislative changes at this time.
The full report and executive summary are available on the Copyright Office's website at http://copyright.gov/policy/software/.
Apple Store Privacy Issues
Do you trust Apple Store employees when they take away your phone to fix it?
Staff in a Brisbane Apple Store reportedly lifted photos from some Apple customers' iPhones and took more than 100 close-up and explicit photos of female customers and staff without their knowledge.
This raises both privacy and copyright issues. It is also creepy.
See Brisbane Times
Staff in a Brisbane Apple Store reportedly lifted photos from some Apple customers' iPhones and took more than 100 close-up and explicit photos of female customers and staff without their knowledge.
This raises both privacy and copyright issues. It is also creepy.
See Brisbane Times
Swipes per minute
In one minute, there are 4,166,667 Facebook likes, 347,222 tweets, 590,279 Tinder swipes and 284,722 Snapchat snaps. See BRG
Revenge Porn
A story in the NY Times about a revenge porn civil case, and whether the decision by prosecutors to drop a corresponding criminal case will have any impact on the civil case.
"In recent years, federal prosecutors in Los Angeles have earned a reputation for being particularly aggressive in pursuing cases against both former boyfriends and hackers selling unauthorized sexually explicit videos to websites. One notable case was the successful prosecution of Hunter Moore, who ran a now-defunct website that specialized in posting revenge porn videos that were stolen from people’s computers and posted without their permission.
The decision to drop the charges against Mr. Elam may illustrate the difficulties in pursuing such cases because they require a jury not to hold the victim partly responsible for creating the sexually explicit images in the first place and either sharing them with a former partner or storing them on a cellphone."
See NY Times
"In recent years, federal prosecutors in Los Angeles have earned a reputation for being particularly aggressive in pursuing cases against both former boyfriends and hackers selling unauthorized sexually explicit videos to websites. One notable case was the successful prosecution of Hunter Moore, who ran a now-defunct website that specialized in posting revenge porn videos that were stolen from people’s computers and posted without their permission.
The decision to drop the charges against Mr. Elam may illustrate the difficulties in pursuing such cases because they require a jury not to hold the victim partly responsible for creating the sexually explicit images in the first place and either sharing them with a former partner or storing them on a cellphone."
See NY Times
Cravath Hacked
A large NY law firm was hacked.
Articles at: www.nytimes.com/2016/03/31/business/dealbook/cravath-law-firm-discloses-a-data-attack.html, and www.wsj.com/articles/hackers-breach-cravath-swaine-other-big-law-firms-1459293504.
Articles at: www.nytimes.com/2016/03/31/business/dealbook/cravath-law-firm-discloses-a-data-attack.html, and www.wsj.com/articles/hackers-breach-cravath-swaine-other-big-law-firms-1459293504.
Consequential Loss After Hacking Decision from the USA
An interesting decision from the United States (11th Circuit appeals court) in Silvertop Systems -- decision here.
There is an interesting discussion of consequential loss, that starts at the heading "LMT's Counterclaim for Breach of Contract"
Facts were these:
·
Supplier
(Silverpop) provided an email marketing service. Customers loaded up
email addresses and Supplier would send out mass emails in a form
specified by the customer
to addresses on the list.
·
Hackers got into the Supplier’s system and got access to several customer’s marketing lists, including LMT’s list.
·
The
contract between Silverpop and LMT had a confidentiality clause
(obligation to protect the list against unauthorised disclosure to third
parties) and an exclusion
of consequential loss.
·
Amongst
the claims and counterclaims, was a claim from LMT that Silverpop had
breached the confidentiality obligation and that the damage suffered by
LMT was the sale
value of the marketing list, which they said was now worthless.
Discount Accommodation and Affiliate Payments
Online travel agents make commissions of approximately 15% to 25% of the price of the accommodation booked. Some share that commission with travellers through loyalty programs. Others give discounts upfront, or share some of the commission with "affiliates" who refer other customers. One such service is JetSetter, who has discount quality accommodation, and shares 5% with the guest and 5% with the referring affiliate. See Jetsetter. (I use this service by the way, and it is good. I have stayed in luxury accommodation at great prices.)
Another good referral program is OFX (OzForex) which is an international wire money transfer business. It is in competition with Western Union, and is much better value. See OFX website.
Another good referral program is OFX (OzForex) which is an international wire money transfer business. It is in competition with Western Union, and is much better value. See OFX website.
Echo from Amazon
The relatively new Echo device from Amazon is getting great press. It will be interesting to see what legal issues arise from a voice controlled device in your home that connects with other systems.
There is also the new Amazon Tap.
Any why is Amazon opening physical book stores?
There is also the new Amazon Tap.
Any why is Amazon opening physical book stores?
Megatrends for a Digitally Enabled Workforce
CSIRO have collaborated with Data 61, BCG & ACS in relation to predicting the megatrends for a digitally enabled workforce. Interesting reading... http://www.csiro.au/en/Research/D61/Areas/Data-for-decisions/Strategic-Foresight/Tomorrows-Digitally-Enabled-Workforce
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