Monday, July 25, 2005


It appears that the Federal Court has made another excellent judgement regarding the bogeyman of copyright law - secondary infringement.

In Cooper a web site was programmed with hyper links to infringing items such as songs and other copyright material.

THe court found that the site 'authorised' infringement.

More interestingly, the Court also found that the ISP hosting the site had knowledge of the infringement and took a commercial gain by way of advertising on the site. By doing so they became co-infringers and were also the subject of orders.

This displays the logic of the secondary infringement standard. The authorisation is created by ommission of an act within your power to prevent infringement. It is a quasi duty not to infringe copyright -> This might become more apparent in the Grokster decision.

Thursday, July 21, 2005


Ok ok ..... by now we all know that Grokster is liable for secondary copyright infringement. It not like I didnt tell you ages ago but everyone had to argue about it.

It looks like the reasons for the secondary infringement were that Grokster made a material gain from infringement of copyright despite the software being capable of substantial non-infringing uses.

What is that I hear - judge made law??

Gasp, shock, horror.

Rather than fix the old standards it appears that the court just added a new one so that:-

2nd Copyright Infringement =

1. A device or event
2. Copyright may be infringed by operation of the device
3. The device is not capable of 'substantial non-infringing uses'
4. The device creates a commercial advantage for its proprietor.

It looks to me as though the court has created a dichotomy between the rights based application of copyright law and the commerce based application of a tort of unfair competition or unfair commercial gain.

The reasons for the decision were not really based in the law but rather the policy regarding distribution of works and subject matter in which copyright subsists.

It really is much of a muchness.

Thank god for the logical Australians standards.

Hey and hasnt lessig gone quiet.

Monday, June 06, 2005

It has been many days since my last confession

Sorry I have been away for so long.

I have been involved in a rather tough debate with J Straton on the Lessig blog regarding the application of 'fair use' doctrine as a 'substantial non-infringing use'. Despite a rather slow start I eventually put in some decent words care of the arguments in the United States Amici Curae Brief. Although had I been left alone I think I would have been beaten.

Anyway I am still on tender hooks to get on with reading Grokster when it comes out in the next few days. I will post up a link as soon as possible.

Friday, May 13, 2005

Copyright Norgen Style

It appears that this Napster decision was very strong in line with the usual central server decisions on secondary copyright infringement. However, it appears that a different angle was taken on determining liability.
Links were provided to popular music with well-known artists, and Bruvikmust have known that the music was uploaded without the right-holders` consent. Thus,Bruvik is liable and must pay compensation for damages primarily due to the fact thatsome of the users of the website otherwise would have bought CDs. There is causalitybetween his acts and (TONO`s) loss. In addition, the Supreme Court states that liability isnot incompatible with the freedom of speech. (paragraph 67 to 70)
In reality this gets us no closer to understanding Grokster or Kazaa because Bruvik (the guilty party) was the uploader. I guess the information was held on his (or an associated) server.
But I do like S 55 Copyright Act where it state the secondary infringement standard
If the right of anauthor or a performing artist has been infringed willfully or by gross negligence,the court may also award him a sum of money as redress for damage of a noneconomicnature
Would peer to peer represent a wilful infringement or gross negligence by not creating some architecture in the software that required the uploader to provide a licence?
I guess it would when you consider author rights as held by the court the exclusive right to make the copyright available to the publiccovers the making available in any way by any mean (paragraph 42).
But still doesnt address file sharing software - the court obviously came close to considering lack of communication of licences as infringement Thirteenth, the Supreme Court refers to what the parties contend as the consequences iflinking is considered as the “making available to the public” being that linking to legallyand illegally published copyright protected material require authorization from the rightholder.The party appealing the case contend that making available implies authorization.The Supreme Court states that such an understanding of the law could probably solve alot, but could lead to difficult question as to delimitation of such an authorization, whichin turn cold lead to doubt and initiate and increase the number of court proceedings.
Thats probably a really good remark on the next round of techno IP debates.
Still it was a solid judgement despite the fact we all read this sort of thing in the last few years.
I did note this one thing that raised an eyebrow though:-
Links were provided to popular music with well-known artists, and Bruvikmust have known that the music was uploaded without the right-holders` consent. Thus,Bruvik is liable and must pay compensation for damages primarily due to the fact thatsome of the users of the website otherwise would have bought CDs. There is causalitybetween his acts and (TONO`s) loss. In addition, the Supreme Court states that liability isnot incompatible with the freedom of speech. (paragraph 67 to 70)
Junichiro Ito must be annoyed.

Tuesday, May 10, 2005

Fair Use

By the way, the fair use discussion paper is out.

Cheers again IPwar

Deep (Linking) Thought

HHGtTG Reference:-

I have recently had the pleasure of reading an essay by Ivan which is available here.

It notes the practice of deep linking.

As you may be aware from reading my blog I am deeply conservative and orthodox in my views of copyright infringment and deep linking has presented a problem.

The concept of deep linking is using a hyper text link to send the user to a page behind the web pages main page.

Ivan argues that deep linking is not illegal if it is an outlink - that is the link takes the browser to the web page directly and does not display any additional information.

Inlinking however, that is where a frame or header from the original site is displayed over the linked information is illegal on the basis that it imports copyright data into the infringers web site.

However, all of this works on the basic assumption that each individual page is a work. It may, in the future, be arguable that the total website and all individual pages represent a single work. In this case, it would appear that by deep linking, even outlinking, you would be communicating a work to the public and therefore infringing copyright. THERE ARE MAJOR PROBLEMS WITH THIS ARGUMENT BUT I THINK IT MIGHT BE RAISED - especially in the context of site owners who derive revenue from site advertising that appears on thier home page. By deep linking and avoiding the advertising the site owner cannot charge the same amount of fees.

Something to think about in the future.

Wednesday, May 04, 2005

Big payout for Plans

In the recent decision of my local district court in Vanwake Investments Pty Ltd v New-Stat Nominees Pty Ltd & Ors [2005] QDC 57 it has become fairly obvious that copyright infringement will not be tolerated.

In the case a designer who had created a set of plans for a shop fitting was knocked back to complete the job. The owner of the shop passed a pencil drawn plan to a new shopfitter and had him complete the job.

The court had this to say about pencil drawing a similar plan:-

It was submitted on behalf of the defendants that if Mr Rowe intended merely to copy the plaintiff’s plan he would not have gone to the trouble of producing the hand drawn sketch Exhibit 39 as the first step. But in my opinion there are obvious answers to that. In the first place, he would have wanted to conceal even from others within the defendant companies that he was copying the plaintiff’s plan. Mr Dillon’s evidence suggests that he was concerned even to conceal that from him. Ordinarily within the fifth defendant plans started out with a pencil sketch by Mr Rowe (p.271), so this plan had to start off the same way. Besides, it would be too blatant a breach of copyright simply to use photocopies of the plaintiff’s plans as working drawings. Apart from these considerations, Mr Rowe would have wanted to make use of his standard display modules and fittings, and the preparation of the pencil sketch permitted an interpretation of the plaintiff’s plans by reference to those standard modules of the defendants. It also gave Mr Rowe the opportunity to introduce a couple of design ideas of his own. Accordingly I do not think that the use of a pencil sketch as the first document which was copied is at all a reason to reject the proposition that it was produced by copying.

But the real harshness came in the damages bill.

Damages were awarded in the amount of 10,000.00 for the infringement itself.

The court noted that reduction of damages on the basis that the designer could have worked on another job was not reasonable:-

Another consideration is whether this really did represent loss of profit, in the sense that, because the plaintiff was not doing this job, it was able to devote its resources to other jobs which acted as an alternative source of profit. Mr McConaghy said that they had been making some allowance in their programming to do this job (p.120), and when it fell through they had some difficulty in keeping work up to employees: p.121. That suggests that it was not the case that the profit which would have been earned on this job was simply earned on some other job instead. On the whole I do not think that this is the sort of case where other transactions in practice made up in other ways the profit which would have been earned from this job had it gone ahead.

The court then turned to additional damages under Bailey v Naimol:-

As to the first of these, this was a fairly flagrant infringement. The plans were identified as the plaintiff’s plans, and in the circumstances as I have found then Mr Rowe must have known that he was copying the plaintiff’s plans. It is apparent from his evidence that he knew that this was wrong, and as early as 15 September there was correspondence from the plaintiff’s solicitors claiming copyright. This was after all the plans had been drawn, but before any of the work was done. I think it unlikely that that correspondence would have come as a surprise to the defendants, but in any case the third and fourth defendants proceeded with the construction of the shop on the basis of the plans after the correspondence.

The court noted damages of $25,000.00 would suffice for the usual 'notional Licence Fee' approach Raben Footwear v Polygram Records however the court went onto note that where there is a greater amount of damage that the court may award this amount:-

In my opinion the notional licence fee and vindication of property right assessment is essentially one which is applied in circumstances where it cannot be shown that the plaintiff has suffered actual loss in a greater sum. Where however a greater actual loss can be shown, that in my opinion is the appropriate approach for the assessment of damages. For that reason I assess damages of $64,000. For reasons given earlier, each of the defendants is jointly and severally liable for this amount.

This is probably the largest award of damages that we have seen in the DIstrict Court for a copyright infringement case. I was beginning to get worried after the Carlisle Homes and Macedab decisions where a little over 500.00 dollars was awarded for infringement of a house plan.

I applaud the court for properly addressing the damages faced by a designer of artistic works that are flagrantly ripped off without a hint of reward - Bravo.

Monday, May 02, 2005

US Lawyers

I think I know why it takes so long to move in the US legal system: They dont read the law - take a look at this and try and find some law:

Here is my post in response:

  Alex Stewart - 02:57am May 2, 2005 (7902. 13254/13254)

Grokster Kazza and Morpheus

If the architecture of the software is so important why didnt anyone at the record companies try to determine whether licences could be granted over the peer to peer network?

As I understand it the standard for (remember I am Australian reading american law) that a person will be liable for secondary (contributory) infringement where their product is not capable of any substantial non-infringing uses. If there is a non-infinging use then there is no liability so long as the producer has not activiley induced infringment.

Now as I see it a copyright infringment occurs whenever a right in copyright is excercised without a defence at law or licence or authority from the owner.

As far as I understand the argument for non infringing uses is based on valid reproduction of material and communication to the public BUT if I were anyone except the true owner how would I get a licence to use the put the works on the grokster system?

The truth is you couldnt - because THE LICENCE TO WORKS SHARED ON GROKSTER COULD NOT BE COMMUNICATED BY THE SOFTWARE. In essence all files transferred into a grokster file where they would be further transferred through peer to peer are infringments.

Now there may be a substantial non infringing use if only true owners of copyright placed items in Grokster files. But Grokster activley induced people to further infringe copyright by making the default saving of files the grokster folder from whence all these files would be shared - I would call that an active inducment.

Grokster is guilty as is Morpheus and Kazaa is much more likely to be taken down in Australia.

If you want to know the truth this issue is political and has been hijacked.