intersections

WIPO re-broadcasting treaty to steal your IP ? - probably not.

2006-08-19T15:10:00.000+09:30

A few people seem to be wound up or reporting that a proposed WIPO treaty will result in big business re-broadcasting individuals content to gain a new copy right over that re-broadcast material.

See :
http://lucychili.blogspot.com/ ( Broadcasters and netcasters aim to claim the internet.)
and http://www.cptech.org/ip/wipo/bt/

I think this unlikely in Australia for a few reasons :

1. Under existing Australian copyright law, you don't "lose" your copyright just because someone has re-broadcast your work. If you have permitted re-broadcasting by either
- placing the work in the public domain
- using a CC licence
then a new copy right is not created by someone re-broadcasting the work. The reason for this is that a re-broadcast is not a new "performance".

2. Even if this particular treaty gets up (and that looks to be in doubt - , International Treaties are not binding under domestic Australian Law unless the treaty has been ratified in Australia by the parliament, and then incorporated in domestic Australian law (otherwise the executive arm of government could sign treaties at will without being accountable to the people)

In this case there would surely be an inquiry as many groups would characterise the proposed function of the treaty as an acquisistion. The recent standing commitee inquiry into the changes required for implementing the copyright aspects of the FTA is a good example of this.

3. Australia has not yet ratified, much less carried into domestic legislation this similar treaty :
http://www.wipo.int/treaties/en/ip/brussels/index.html
Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite

4. I think even if all the above did come to pass (unlikely in the short term)), then I think the way the treaty worked would be seen as an acquisition of property, and under the Australian Constitution acquisitions by the Commonwealth can only be on "just terms"

5. Protection is already given to original authors as a result of both the operation of the Berne Convention Article 11bis
http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P156_28886

and the treaties that WILL be ratified and domestically incorporated as a result of the Aus-US FTA in January 2007 , namely :

WIPO Copyright Treaty : http://www.wipo.int/treaties/en/ip/wct/index.html
WIPO Performances and Phonograms Treaty : http://www.wipo.int/treaties/en/ip/wppt/index.html

See http://www.dfat.gov.au/trade/negotiations/us_fta/final-text/chapter_17.html

The WIPO treaty provides :
Article 8
Right of Communication to the Public

Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.9

Thus, the proposed "re-broadcast" treaty would have to either overturn or substantially re-write both Berne and WIPO. Not likely anytime soon.

6. Finally (!) there is no real need to do this the hard way by treaty when people (well, mostly people under 30 or so) seem quite happy to freely give up their rights voluntarily when they sign up to services like Youtube, Myspace etc..

See here : http://www.boingboing.net/2006/07/20/youtubes_new_policy_.html
and
http://www.pbs.org/cringely/pulpit/pulpit20060727.html

David "The Hoff" Hasselhoff - Jump In My Car - breach of contract ? , or is there an estoppel in there somewhere ?

2006-07-01T10:49:00.000+09:30

the stuff you come across on the weeekend.... they should give this to first year contract law students to analyse, and then later, to equity students to analyse for possible estoppels. I think the answers you get will be quite different !

Incredibly cheesy, geez I laughed !

"That's right, it's Hofficial... your favourite cult icon wants to take you home! The one and only David Hasselhoff of "Bay Watch" and "Night Rider" fame returns with a cover of the
1975 classic 'Jump In My Car' and its a doozy. Recorded in Sydney last year with the legendary Harry Vanda (AC/DC, The Angels), the Ted Mulry Gang tune has been re-vamped with full Hoff gusto and this music video promises to rock the socks off all his Hofficial fans. Watch it, enjoy it, share it on Google Video, courtesy of Sony BMG Australia.

Want more? Buy the buy the track on iTunes Australia "

US DoJ reacts to Hamdan v Rumsfeld (badly)

2006-06-30T12:39:00.000+09:30

Buried in this article on the SMH is this quote from a DoJ spokeman

"We vigorously disagree with the court's decision, and will seek an emergency stay of the ruling and immediately appeal," Justice Department spokesman Mark Corallo said.

He said the government stood behind President George W Bush's determination that the Geneva Conventions did not apply to members of al-Qaeda.

In the ruling "the judge has put terrorism on the same legal footing as legitimate methods of waging war".

They just don't get the rule of law do they ? The constitution is supreme, and the interpreters of the constitution are the courts. NOT the executive. So it doesn't matter how determined the President gets. (ps - this applies in Australia as well...)

I don't have any other source of this story other than the SMH, it's not on the official DOJ Press releases website

How, or will the US executive try again by :

taking it back to Congress to try to regig the rules ? I don't know if merely changing the rules down there will help, it's a 185 judgement that I haven't read yet. It may be beyond redemption - dunno.
get the case reheard by the FULL bench of SCOTUS ? Remember Chief Justice Roberts recused himself because he sat in an earlier appeal of the same case lower down (and held for the executive) ; so that still would make it 5:4
option c - dunno ?

Who knows ?- people say strange things when they are upset, and particularly so when their world-view is challenged, or in this case slapped down - big time.

Hamdan v Rumsfeld - a victory for the rule of law and David Hicks

2006-06-30T09:16:00.000+09:30

So now we know. The US Military Commission process in Guantano Bay is contrary to:

the US Constitution
the Geneva Convention on the Treatment of Prisoners of War
the standard US Military Code of Justice
US common law

The lesson from this for Australia is that the "war on terror" does not give the executive government unlimited freedom to trample all over every safeguard and the established rights that our free society cherishes. The executive cannot unilaterally decide, they have to operate within the constitution. There are no end runs around the constitution. The rule of law is ascendent, and not the arbitrary rule of the executive.

so, good for David Hicks and for the rule of law, but not so good for my Advanced Public Law paper..

I couldn't write a lot yesterday after hearing the Hamdan v Rumsfeld was going to be handed down by SCOTUS today. In fact I had analysis paralysis, it's pretty common for us INTJ types

I've had to rewrite the intro :

There is an alternate universe, one where the US Supreme Court decided Hamdan v Rumsfeld in favour of the US executive branch of government. In that universe David Hicks underwent a trial at Guantanamo Bay under the President’s Military Commission. After he was found guilty, his appeal (to the military review panel) is denied by Rumsfeld acting as the President’s delegate. A 30 year sentence of detention is passed to be served either in Guantanamo Bay, or Hicks can elect to serve the term in an Australian maximum security prison, probably Silverwater. Hicks agrees to the removal under the terms of the International Transfer of Prisoners Act 1997 (Cth)

Question: Given the above hypothetical scenario, discuss any public law and constitutional issues that may arise, and make a conclusion as to whether such a detention would be lawful.

Overall, I'm happy that David Hicks will either get procedural fairness, or the US will recognise that the entire process is unfixable, and simply deport him home with a "sorry" note.

Like the legal luminaries of ICJ Australia said early this month, in their open letter to John Howard,

Whether or not David Hicks is in fact guilty or innocent is not the issue. The illegality lies in the process of indefinite detention and unfair trial by Military Commission, a process which expressly has no application to any American citizen.

Oh, and now section 4A of International Transfer of Prisoners Act 1997 (Cth) either needs to be struck out, or ammended to ensure it is in conformance with Hamdan v Rumsfeld.

For the purposes of this Act:

(a) a military commission of the United States of America is taken to be a court or tribunal of the United States of America; and
(b) any punishment or measure involving deprivation of liberty ordered by a military commission of the United States of America is taken to have been ordered by a court or tribunal of the United States of America in the exercise of its criminal jurisdiction; and
(c) any direction or order given or made by a military commission of the United States of America with respect to the commencement of such punishment or measure is taken to have been given or made by a court or tribunal of the United States of America.

bzzzz ! WRONG !

This would entail making ammendments to ensure that any military commision must be held according to the Geneva Convention, and the standard US Military Code of Justice.

This Commonwealth legisalation will also need to be changed :

(3) In this section:

"offence against a law of a foreign country" includes an offence triable by a military commission of the United States of America established under a Military Order of 13 November 2001 made by the President of the United States of America and entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”.

There's probably other places in the raft of Anti Terror legislation that will also need modification. The government has really jumped the gun here and have egg on their face big time.

Back to my alternate universe now where the paper still needs to be written... ho hum..

the most essential thing to successfully study law

2006-06-22T14:44:00.000+09:30

whilst I was deep in thought, reading and marking up a case at the kitchen table, a friend once said to me, "I could never study law"

"Why ?" I said...

"Because I don't have a highlighter!"

I laughed at the time, but it is so true !!! - a good highlighter can help you condense a 60 page judgement down to the 3 key sentences that contain the ratio.

ok, back to highlighting now...

truncated blogger template, do I have a legal remedy ?

2006-06-21T12:57:00.000+09:30

I'm annoyed. Very annoyed. A well known software problem with blogger has let me down and I now have a trunctated blog template, which means I'm going to have to spend MY time to rebuild it.

NOT HAPPY.

For those not technically inclined, a blog template regulates the entire look of a blog. In my case I'd added :

adsense
creative commons
statcounter.com
feedburner feeds and email subscription
blogger ATOM feed
a legal disclaimer
a blog roll of related blogs
last.fm recently listened-to music
geocoding metadata
legal links and resources
blogmap and clustermap
geourl

And somehow, overnight, the blogger system somehow manged to mangle my template so that now only about half of it is there.. and almost NONE of the extra stuff mentioned is there.

Now, legally, under in contract law, under the blogger terms of service they are off scot free due to the operation of clauses 8, and 9

8. DISCLAIMER OF WARRANTIES MEMBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT MEMBER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" ...

PYRA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

PYRA MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE

and ..

9. LIMITATION OF LIABILITY PYRA SHALL NOT BE LIABLE FOR ANY DIRECT, ... OR CONSEQUENTIAL DAMAGES, RESULTING FROM ... UNAUTHORIZED ACCESS TO OR ALTERATION OF MEMBER'S TRANSMISSIONS OR DATA, (EG MY TEMPLATE !) INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

ok, we geddit, you can screw up bigtime, and we have zero claim on you...
IN CONTRACT !

But...
0. I seem to remember that in tort law, you can't contract out of negligence.

Elements in Tort..
1. Blogger has a duty of care to me as their actions of negligence can affect me.
Their standard of care is also high, as they are not some tinpot software developer - this is multi-billion dollar Google we are talking about here with virtually unlimited resources..

2. They breached that duty when they either
a) failed to warn me of a known problem ( I had to find out the hard way thru searching problem reports - it gets reported as :

This happens fairly often and probably by not fault of yours! A glitch just takes it out! For now, try these instructions:
ROTE ADVICE FOR RECOVERING FROM DAMAGED TEMPLATE

b) allowed a known problem to continue to exist (see point re unlimted resources above)

c) failed to provide a simple work- around (eg email me a copy of the template every time I change it, create a "backup my blog" button ? etc..)

3. The damage was caused by the borked blogger software. I didn't do it, random joe doesn't have my password to make the change. It can only happen due to the software under bloggers control.

4. The damage is not "too remote" ; it is directly caused by a known fault in the blogger software.

Also the Trade Practices Act may prevent Pyra/Google from excluding themselves from liability
See this excellent overview article from Freehills on exclusion clauses

Jurisdiction - the terms of service all say USA, but Dow Jones v Gutnick said that when the harm happens in Australia, then the courts have jurisdiction, regardless of where the web server/service is geographically located.

and now Pyra, wholly owned by Google has assets in Australia. :-)

Now, I have a duty to mitigate my losses, so I'll probably start to rebuild the template by hand.

But I'm still "not happy jan"

geocaching and procrastination

2006-06-15T12:49:00.000+09:30

I have a Remedies exam next Wednesday morning. I should be revising, but it's hard... it's
much more interesting to be out and about geocaching. I describe it as "orienteering for nerds" with a GPS - but for actually me it's a great activity displacement distraction.

I found 1,2,3 geo-caches this morning in ~ 30minutes - of course all are luckily sorta on the way to my census managers house - I had to drop off my ABS census contracts. (August 8th 2006 everyone)

Luckily ABC 891 local radio had an interview with some Flinders Uni psychologists who were advising post-grad PhD students about the psychology of procrastination. Apparantly it's all about preserving one's ego.

If you procastinate, then
- if you fail the exam you can say to yourself "I didn't have enough time"
- if you pass the exam, then you can tell yourself howe smart you are , even with that little preparation.

Even if procrastinating makes the chance of the former event more likely, creating an alibi for protecting your ego is more important than passing the exam... One day I should shoot that ego.

Wow. It rings true for me. All they suggested was to break the big task down, and just do 10 minutes to start the motivation cycle. Of course, typing into this blogg is exactly the opposite, just more activity displacement distraction.

I will start - soon. As soon as I do just one more thing.. aaarrrhh !!

ps - it works - I did one small thing, and ended up working solidly for 2 hours... :-)

restitution after death

2006-06-08T15:30:00.000+09:30

this picture (thanks Seth).. it raises a few public law questions...

can a public authority fine you (or your estate) after you have died ?
if the wires are found to be an illegal "man trap" , can you get restitution from the public authority ?
if you are basing your restitionary claim in equity, do you still have "clean hands" if they are fried ?

presumably the enabling bylaw for this would allow for some degree of discretion on the part of the public official demanding the fine, but what if they REALLY wanted people not to touch the wires because charred bodies caused short-outs , and massive commuter inconvienence ? They may well try to impose the fine as a "message" to other would-be miscreants.

OK, sicko-morbid humor off now.
Normal service shall resume shortly.

my e-life is on google

2006-06-08T13:45:00.000+09:30

just signed into the google spreadsheet beta - it's very schmik, both my timetable and degree progress spreadsheets imported flawlessly, and I've been able to share them online with my partner online - something I could never do, and ensure that she always had the current version...

Slowly and surely I'm willingingly putting more and more of my life into google databases. First it was just a cookie and my seach history, then it was personalised searches.

Then along came gmail which also gave me integrated google-chat and more storage than I knew what to do with. I love having my chat's archirved as well, all searchable for years to come...

Then gcalendar allowed me to free myself from a paper diary ; I love being able to do a search on "due" and see when all my assignments are due, or "birthday" for the same . Reminders that pop up, and being able to invite people to events also works for me.

The google-spreadsheet thing now allows me to share spreadsheets with information I don't think is terribly private. I don't have a laptop, but every computer has a browser (Firefox within 3 minutes of me sitting down at a kiosk !)

The convenience, and features to me outweigh any privacy concerns I have, not that I have any delusions that I have many privacy rights anyway...(see ABC v Lenah Game Meats) I'm not a corporation, just an individual. Of course Google employees could see all of this, but I don't think they will care. Aggragated information is fine by me - I don't have tin-foil hat, and I've got a part-time job next month as an Australian census collector, so it would be a bit hipocritical of me to be involved in the census, and disagree with aggragated stats.

Random person's can't mess with me unless I am not careful with my master password. I can share my calendar, and my spreadsheets with whom I want to, to the extent I want to.

Google privacy policy is good, and better than that they actualy showed some spine by standing up to the justice dept's request for information. So I have trsut that the policy is not just empty words.

And now I'm blogging (on blogger - also owned by google) , and serving up google Adsense ads.

The only things that haven't "stuck" are gtalk - I tried it, but I still prefer skype and have bought into skype by using it to call landlines using paid-for skype credit.

I look forward to writely - and hopefully there will be a powerpoint to google-point clone at some stage so I can put easily my essays and powerpoints online in a non-MS format.

It's a google e-life, and it will last as long as my trust is there. It will be interesting to re-read this post in 5 years time... in fact, I'll set a g-calender reminder for myself now !

setting up a blawg

2006-06-07T16:43:00.000+09:30

It's taken a bit more than I first thought...

After I had set up the blog on blogger I've also ~~had~~ chosen to add to my template :

adsense
creative commons
statcounter.com
feedburner feeds and email subscription
blogger ATOM feed
a legal disclaimer
a blog roll of related blogs
last.fm recently listened-to music

implementing categories looks easy, but involves tagging using de.lic.ious.us , can't be bothered with that as well, so I'll let blogger implement it for me.

I've also submitted the blog to :
www.blawg.org
ringsurf.com as a "Legally Inclined Weblog"

ALL of this should be in the blogger setup options, geez guys - why not make all this a paid option ? You need to be comfortable cutting and pasting HTML into the right section of your template to make all this magic happen..

That is just not going to happen for the vast majority of people. c'mon blogger - get with the program !

- oh - I also needed to find an easy way to edit and then publish these posts - using the EXCELLENT Firefoxfox plugin "Performancing" - it's a very nice tool indeed.

welcome

2006-06-07T16:34:00.000+09:30

this will become the welcome page, with a bit about me and the blawg

another jurisdictional issue - AllofMP3

2006-06-07T12:10:00.000+09:30

with claims like this ;
Slyck News - AllofMp3.com Breaks Silence
"2. The Russian site AllOfMP3.com is not operating or advertising its business on the territory of other countries."

you have got to be joking ! The site seems to work from my browser sitting here in mid-winter sunny Adelaide.

oh - and from the viewpoint of an Australian Court, any harm to content providers is being done, whether or not the webserver, or business is operating in another country. It's that Dow Jones v Gutnick argument all over again...

I wonder how favourably a court would look at an injunction restraining AllofMP3 sending their content into Australia ? Because Australian content providers can't sue them directly (so damages are unavailable), I wonder if a court would order 3rd party ISP's to blackhole traffic flowing from AllofMP3 into Australia ?

If you asked for coercive reflief by targeting the Australian DNS servers that resolved AllofMP3, then you wouldn't need to play whack-a-mole with AllofMP3 jumping from one IP address to another. ie, no continous supervision, unlike a IP address blocking.

In 2002 just 36 ISPs had over 80% market share (and it's consolidated since then). So a one-line (no hardship) change for 36 ISP's takes AllofMP3 off the web for the vast majority of Australian net users.

Of course determined, tech-savvy persons could get around this by using a foreign DNS server, but futility is not a defence for denying coercive relief.

www.indigenoushunter.com neutered

2006-06-06T14:06:00.000+09:30

blogged about this last week, the site is now back up, but not in the old format.
now, it's just a very sad advertising spam minefield collecting google ad clicks from the gullible.

last.fm - a legal copyright trainwreck about to happen ?

2006-06-06T14:03:00.000+09:30

I discovered last.fm today - listening to music I already have, and recommendations made by other people with similar interests to me. It's a neat service.

The proto-copyright lawer in me does wonder though, how or if all this content is licensed.... the last.fm website is silent on this issue..

I'm thinking that the High Court's Telstra v APRA (1997) 191 CLR 140 decision may be highly relevant. The court held that the "music on hold" was a diffusion service even if the clients didn't subscribe to the service - they were presented with the music whether they like it or not.

In this last.fm case,

people DO subscribe to last.fm's music
the last.fm service would probably be characterised as a broadcast under the Act
last.fm is gaining a clear benefit by selling aggregated data about the subscribers, and the advertising on the site itself.

For more analysis see 'The copyright dangers of music on hold: Telstra Corporation Ltd v Australasian Performing Right Association Ltd'

last.fm's HQ seems to be in the UK, and there seems to a distinct lack of adult supervision

There is also the jurisdiction issue. Maybe all this is OK under copyright law in the UK, I don't know.
But following Telstra v APRA IMHO it's NOT OK under Australian Copyright law.

But where is the infringement happening ? In the Australian High Court, Dow Jones v Gutnick , the court held that it was irrelevant that the Dow Jones webservers were in the USA. They held that Joe Gutnick had been defamed in Australia.

So, I wish last.fm well, and hope they get bought by someone with deep pockets, because this looks like a legal copyright train wreck about to happen.

presentation zen

2006-05-31T20:22:00.000+09:30

I'm doing a presentation on Friday on DRM legislation in Australia. It's interesting trying to turn 3,500 words into 15 minutes of succint powerpoint that won't send people to sleep..

I'll try to ape Lessig's style, it's a tall order to copy the master of powerpoint, but it's fun trying...
See : http://lessig.org/freeculture/
and
Presentation Zen: The "Lessig Method" of presentation

China's emerging IPR opportunity

2006-05-26T12:21:00.000+09:30

Wow - that's some big opportunity ....
From People's Daily Online -- China faces challenges of IPR competition
Most Chinese enterprises do not have patented technology. Only 0.03% of the Chinese enterprises possess core technology with independent IPR. About 99% of the enterprises haven't applied for patents, 60% of the enterprises have no trademarks. Most of them are "making" instead of "creating". They do possess the "property rights", but do not have the "knowledge".

I remember a talk a few years ago by the head of Gartner Asia Pacific. He said that China aspires to educate it's people to the same level as in the West - that's going to be MILLIONS of University educated people....

When that happens, the tables will turn and China will no longer be a consumer of IP, and the manafacturing engine, it will become a generator of IP AND the manurfacturing engine.

In that world, China will be need people with a clue about IP and technology. I've always liked being an expat, done it before a few times. I reckon Shanghai may just figure in our future at some stage.

gross breach of privacy, search the Telstra phonebook at www.indigenoushunter.com

2006-05-23T22:26:00.000+09:30

The Advertiser has reported this (23/5/6), but it's not really spelt
out just how serious this is.
http://www.theadvertiser.news.com.au/common/story_page/0,5936,19226802%255E2682,00.html

The security of the telstra phone and address database has been compromised.

http://www.indigenoushunter.com/

you can do reverse lookups of, for example,
- just a phone number, and get the full corresponding name and address

- everyone living on a certain street, and get back all their
addresses and phone numbers, *across australia.*

-of every surname in a suburb or postcode - across australia.

Even partial searches work of partial phone numbers, surnames and
street adresses.

This is a gross invasion of Australian's privacy, and it's not good enough.

I acknowledge that Telstra may not have been at fault, and this
security breach may be the fault of a third party to whom Telstra has
entrusted this database.

2006-05-23T17:07:00.000+09:30

first post !