A spokesman for the Attorney-General's Department said it was proposing that ASIO be authorised to ''use a third party computer for the specific purpose of gaining access to a target computer''.
The problem seems to be that even suspected terrorists are getting the hang of this security stuff:
The department said technological advances had made it ''increasingly difficult'' for ASIO to execute search warrants directly on target computers, ''particularly where a person of interest is security conscious.''
So the idea seems to be to infect the computer of someone that the alleged terrorists know, and then use that trusted link to pass on malware:
Australians' personal computers might be used to send a malicious email with a virus attached, or to load ''malware'' onto a website frequently visited by the target.
That probably seemed like a really clever ruse to the people who thought it up, but it overlooks some basic flaws.
First, that once ASIO has taken control of an intermediary's computer it can do anything -- including poking around to see what's there. After all, if intermediaries are known to suspected terrorists, it's possible that they too might be terrorists.
The authorities are insisting that the warrant to break into somebody's computer would not authorize ASIO to obtain "intelligence material" from it. But you don't have to be clairvoyant to predict that at some point in the future, "exceptional" circumstances will be invoked to justify doing precisely that: once security services start down a slippery stop, they never seem to be able to stop.
Secondly, as the German experience shows, if a computer has been compromised by malware in this way, it's not just the government agencies that can take control: anyone who has obtained the malware and analyzed it will be able to look for ways to send their own instructions. That could leave innocent members of the public vulnerable to privacy breaches and economic losses that would be directly attributable to the spy agency's digital break-in.
Finally, this approach seems to overlook the fact that presumed terrorists are unlikely to be best pleased with any person that unwittingly sends them government malware. If they notice and really are ruthless terrorists, they might decide to take revenge on that person and his or her immediate circle of family and friends. Either the Australian spy agency hasn't really thought this through, or it is being extremely cavalier with the lives of the members of the public it is supposed to protect.
from the spoofing-your-region-for-fun-and-profit! dept
Laws in general aren't known for their clarity, hence the need for lawyers to rack up billable hours searching for loopholes to exploit or to try to bend them to fit the case at hand. Copyright laws, while less tangled than the infamous "Patent Thicket, " are no straightforward walk in the park, either.
Hellman turns his attention to F. Scott Fitzgerald's "The Great Gatsby," and using his skills in the area of "Quantum Copyright" (a term he threw into his LinkedIn profile for a bit of fun), determines that the question of whether or not copyright infringement has occurred might depend on where the copying occurred, something that is even harder to define when the copying takes place via the internet.
It turns out that where a copy is made has consequences. Consider Fitzgerald's The Great Gatsby...
The Great Gatsby already belongs to every Australian, in the sense that Australians have the right to read and copy it for free without anybody's permission. In the US, it belongs to the CBS Corporation, and if you want to read it on Kindle, it'll cost you $7.80.
If you copy Gatsby in Australia, no problem, it's cool, because Gatsby has entered the public domain. There's an excellent version available from Project Gutenberg Australia. If you do it in the US without permission from the CBS, it constitutes copyright infringement and is punishable with jail time and statutory damages up to $150,000 per incidence of infringement. So it really matters where the copying occurs.
While Hellman exaggerates the repercussions of making a hypothetical copy (the highest statutory claims would apply only to willful infringement [which this could be, especially when infringing in order to prove a hypothesis] and the jail time only applies to criminal infringement -- which this almost certainly would not be), the fact remains that one deterrent of infringement is the underlying threat of legal action (whether civil or criminal). No doubt F. Scott Fitzgerald's estate is in no hurry to give up the American rights (and the attendant enforcement of those rights), seeing as "The Great Gatsby" earned its author all of $8,400 during his lifetime -- but generates $500,000 per year for his daughter. This secondhand largesse enjoyed by many heirs is one of the motivators behind the ever-extending copyright lengths here in this country.
Hellman posits this not-so-hypothetical situation:
Suppose you have a book sitting on a computer in Australia. The computer breaks the book into thousands of UDP packets and sends them into the Internet. Copying can't have occurred yet, because the packets aren't fixed in any form. For copyright purposes,
"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed. http://www.copyright.gov/title17/92chap1.html
Now suppose the packets are reassembled on my hard drive in New Jersey. A copy of "The Great Gatsby" has materialized. Has a copyright been infringed? If I was in Australia and the source of the packets was in the US, would the answer be different?
In this case, the copying process originates in a country where no copyright protection covers Fitzgerald's book. Its "assembly" in the US suddenly makes it an infringing copy. Does this make sense? More importantly, does it even matter? According to rights holders, the copy would still be infringing, simply because it was copied, at least according to the section of copyright law cited by Hellman, which states that only the owner of the copyright has the "exclusive right... to reproduce the copyrighted work."
But even that doesn't entirely clear up the situation. If no rights holder can claim this "exclusive right to reproduce" in Australia, then it would seem that "shipping" copies from Australia would be a legal act, right up until the copy "hits" the US border. Exploring this hypothetical situation further, Hellman comes up with a list of "quantum copyright" possibilities.
So we have 8 different quantum copyright location scenarios; 6 have uncertainty as to the fact of infringement:
1. Person copying, copy source, and copy destination all in US. (US law controls!)
2. Person copying, copy source, and copy destination all in Australia. (Australia law controls!)
3. Person copying and copy source in US, copy destination in Australia.
4. Person copying and copy source in Australia, copy destination in US.
5. Person copying and copy destination in US, copy source in Australia.
6. Person copying and copy destination in Australia, copy source in US.
7. Person copying in US, copy source and copy destination in Australia.
8. Person copying in Australia, copy source and copy destination in US.
So, to sum it all up, magic 8-ball style: "Answer unclear. Ask again later." More narrowly, however, the exclusive rights granted to copyright holders would find most of these situations infringing. Any copy originating in the US would violate the reproduction right as Hellman points out. Any action initiating in the US would very likely violate the holder's distribution rights. For all intents and purposes, the hypothetical copier is only 100% in the clear in instance #2, where all copying starts and stops in Australia where Fitzgerald's book is public domain. In cases where the copy is "sent" to the US from Australia, it could very well fall under the the "right to reproduce," as US consumers would be limited to "authorized" copies from the rights holders. If some Australian set up a site offering downloads of public domain books that were still under copyright in the US, the rights to reproduce and distribute would likely be pointed out as the reason any US users availing themselves of this service are actually guilty of copyright infringement. If it's under copyright in the US, then the copyright owner's rights must be respected... at $7.80 a copy.
Certainly, copyright-centered entities like the MPAA would prefer to simply have our copyright laws exported to other countries with less stringent laws, especially any sections that extend the length of copyright protection and weaken fair use/fair dealing exceptions. Getting other nations to sync up with our copyright lengths would certainly eliminate these hypothetical discussions, along with many items in the public domain. Many aspects of current copyright laws were written years ago, long before the internet made "country of origin" a meaningless term and reproductions as simple as a right-click on a mouse. What it usually boils down to, after all the discussion, is this:
You could also be a cynic and say the only thing that matters is where the judge is sitting.
Much like fair use is often determined by a courtroom appearance, the "quantum" aspects of copyright are largely theoretical -- right up to the point that someone finds themselves at the other end of an infringement lawsuit.
As Tim Cushing recently wrote, Australia's Classification Board (whatever the hell that is) decided that this was the year. The year for what, you ask? Well, the year to acknowledge that people over the age of 15 exist within their borders. It seems a little silly that, prior to 2013, Australia's governing bodies chose not to acknowledge that the age of the average gamer is something around thirty years old. Emboldening the morality police "for the children" is one thing, but to do so for law-abiding adults is quite another. I think it showed an immense amount of disrespect towards the Aussie public that it took so long to entrust with them their own entertainment choices.
In any case, Australia has followed through and reached a milestone hitherto unimaginable: the very first R18+ game has been classified, and the honor goes to Ninja Gaiden 3: Razor's Edge. According to the Classification Board:
“Ninja Gaiden 3: Razor’s Edge contains violence that is high in impact because of its frequency, high definition graphics, and emphasis on blood effects.”
So congratulations to Australian adults, who can now play the game as it was meant to be played: bloody, violent, high in impact and in high in definition. I have to imagine that the only thing sweeter for Australian adults than the ability to finally play these kinds of games is the delicious irony in how Australian Rules Football, which is televised, fits the Classification Board's description almost exactly. Foster's all around for everyone!
from the because-1968-was-a-hell-of-a-year-for-all-concerned dept
The results are in for Australia's request for comments on reforming copyright policy -- and the submissions are, unfortunately, unsurprising. (The entire "Copyright and The Digital Economy" questionnaire is embedded below.) The legacy industries like things the way they are, (except for file sharing) and are only requesting changes that would lead to more licensing opportunities and greater fees.
As far as orphan works are concerned, nearly every entrenched publisher believes that they should get to control how these works are sold.
Our preference would be for the creation of a collective licensing scheme for such works, along the lines of the Canadian system. There the Copyright Board has the right to issue a non-exclusive licence for the use of orphan works after reasonable efforts have been made to find the rights holder. Fees are then distributed among members after a certain number of years. Whatever model is chosen, it should be based on authorisation by a formal collective licensing body rather than taking the form of an exception. Also, importantly, there should be no assumption or requirement that moral rights have been waived.
Basically, publishers would like to have "non-exclusive" licenses granted to publish orphan works, but only after a "reasonable effort" has been made to locate the rights holders. After an arbitrary amount of time, these fees will be redistributed to participating parties.
Non-participating parties would be guilty of copyright infringement if they released these works on their own or secured copies, presumably. Again, the public will not be allowed to benefit from these works, but instead, must go through the usual gatekeepers to acquire copies. Despite these being "non-exclusive" licenses, it appears that only participating publishers will be allowed to profit from these works. No clarification is given in terms of what happens to these works once the arbitrary waiting period is over and the monies redistributed. Public domain? Back to the "orphan works" pile to be re-exploited for another X number of years?
Additional exceptions for private, domestic or non-commercial use are off the table as well. The argument seems to be that even though people are sharing content in a non-commercial context, the sharing takes place on commercial services like Youtube or Facebook. This is viewed as another opportunity for licensing, hopefully paid for by the deep pockets of corporations rather than by individuals. What's ignored is that when a person shares a song, photo or video with someone else, they're doing it without any desire for personal financial gain or to harm the creators. But maximalists tend to find something innately wrong with these situations. Here's Walker's take on non-commercial sharing.
We are seeing a lot of examples of Books being taken and read/shown on YouTube – they are therefore being shown in a public and not a private forum and so being shared without consent...
Where does one begin and the other end? Someone's "private" reading on YouTube for instance, although non-commercial, could undermine the legitimate marketing activity of the author or publisher – or certainly deminishes [sic] its impact.
First off, I find it hard to believe that someone would consider watching a video of someone reading an acceptable substitution for purchasing a book. Second, what are you doing about it other than complaining? Have you uploaded your own readings? Maybe one from the author? Have you claimed the video for monetization? Unless you're making a few moves of your own, it's a bit disingenuous to complain about someone doing your marketing for you.
Yes, Youtube is a commercial entity but as an aggregate. Individual users are generally not uploading their own readings as part of a business plan. It's usually because they're a fan of the book and they're sharing stuff they like with others. This is a good thing.
The performance rights organizations have also sent in a response, one filled with misrepresentations and and the sort of entitlement that has served it well for so many years. It starts on the wrong foot and gets worse.
APRA|AMCOS are concerned that references to the "constant debate" about whether copyright law acts as an incentive to production of new material are a distraction from what should be the focus of this Inquiry...
Yes. Let's not talk about how expanded copyright law that fails to meet the needs of the digital age might be stifling production of new material, BECAUSE THAT'S WHAT PROMPTED THIS ENTIRE PROCESS. Let's just ignore the debate and keep things the way they've been since 1968 because nearly a half-century down the road nothing has changed except everything.
Copyright encourages creativity. Exceptions should only be enacted where there is an overriding social benefit that justifies a limitation on the property rights of the copyright owner. Anecdotes about how creators are not motivated by economic considerations have been used to suggest that creators are economically irrational and therefore should not participate in markets for their works. This is wrong. Copyright is a grant of property rights that enables authors to commercialise their products and maintain the integrity of their creative output.
This is a willful misrepresentation of the views of those who question the incentive value of copyright. No one has stated that just because some creators create without financial incentive that no creators should seek to make money, or even enjoy the protections of copyright. What is actually stated is that many artists were successful before the days of expanded copyright protection, and despite it, which would indicate that copyright protection isn't nearly as crucial as the copyright industries paint it.
APRA|AMCOS on Mashups (Transformative Use)
Australia has a sophisticated licensing regime that permits a large number of new businesses to operate using copyright material. To the extent that not all such businesses survive, there is no evidence that this is related to anything other than the operation of normal competitive market forces.
Except when it's your business that is threatened and may not survive. Then it's time for legislators to step in and "save some jobs" or whatever angle gets the playing field "leveled" fastest.
APRA|AMCOS on adopting US-style "fair use" laws and statutory rights
[I]t is clear that copyright owners in Australia cannot act as potently to prevent online infringements as can copyright owners in the US, whether against the infringing customer or the infringing internet service provider.
Infringing service provider? There's an unlikely term. If you're thinking of getting your hands on US-style statutory rights, you might want to keep in mind that ISPs are not responsible for the actions of their customers, unlike in Australia. Infringing customer? The hell does that mean? What it sounds like is that even paying customers are shortchanging rights holders somehow, but in reality, it's just APRA|AMCOS trying to tie the ISP to its infringing subscribers. In other words, APRA/AMCOS wants the power to litigate against both ISPs and individuals, but will cede nothing to fair use or any other US-style policies that benefit the public at large. Or in pirate parlance, "Take all ye can. Give nothing back."
So far, so much of the same worn-out arguments for greater enforcement, more licensing and less of anything that favor the general public. The biggest backlash seems to be saved for any discussion of moving Australia's fair dealing laws in the direction of America's fair use laws.
If the aim is indeed to avoid or abolish barriers to innovation, then the introduction of "fair use" provisions would be a highly unusual path to take, a path that has been adopted by only four countries worldwide, but rejected by many. The introduction of a fair use doctrine would:
• create legal uncertainty and hence an atmosphere hostile to creative innovation and freedom of speech;
• violate Australia's obligations under international copyright treaties, in particular the "three step test" of the Berne Convention, WCT and TRIPS;
• require the introduction or importation of an entire body of legal precedents, adjudications and case law into Australian jurisdiction, the introduction and interpretation of which would carry with it unpredictable legal risks.
A "fair use" doctrine works (more or less) well in a US context because of its roots in more than 150 years of case law, and significant - 35 years - experience with interpreting its codified version. It is exactly this long history that alleviates (but not silences) concerns regarding legal certainty, freedom of speech and violation of international treaty, but many commentators remain concerned also with regard to the US context.
This is one of the most ridiculous arguments against fair use I've ever read. (And I've read it twice: the MPAA used the same argument in its submission) Sure, fair use may create "legal uncertainty," but that's only because so many rights holders are convinced that there should be no unlicensed use of their creations... ever. It's this hardline approach that creates "legal uncertainty" -- not the fair use itself.
As for fair use being "hostile" to free speech and innovation -- well, that's just completely wrong. Copyright has been abused to stifle criticism multiple times, often as a "Plan B" when it appears that proving defamation or libel might be tricky (or impossible). Fair use increases free speech, not the other way around.
And I'd really like to see the International Publishers Association prove that fair use harms innovation. The MPAA's own "respect our authority" response to the call for submissions states that it relies on fair use as part of its creative process. (Mere sentences later, though, it warns Australia that fair use isn't for them, so don't even think about adopting it.) Greater IP protection is what's actually harming innovation as it exposes new entries into the market to increased legal action. One needs to look no further than the debacle d/b/a/ the patent system for evidence of stifled innovation.
The final argument dealing with the US fair use system and its "built in" history is a non-starter. While importing case law and precedent would bring "unpredictable risks," expanding the current "fair dealing" to closer match fair use laws would be a good start. At some point, every country has to create its own precedent, something that's impossible to do if everyone keeps worrying that a new law won't appear fully formed with years of precedence behind it. This argument pops up in the MPAA's paper as well. Apparently, Australia is just supposed to cede to the logical fallacy built into the ourobouros-esque reasoning that "fair use works in the US because of years of precedence but won't work anywhere else because no precedent has been set." You can't set precedence if you're unwilling to institute fair use and, you know, start setting some precedent of your own.
APRA|AMCOS on Fair Use
The uncertainty engendered by an open fair use exception is likely, as in the US, to give rise to considerable litigation that would defeat the purpose of adopting such an exception. It is likely that fair use would be raised as a defence to many allegations of copyright infringement, adding significantly to costs of legal advice and to the costs of litigation.
Once again, copyright apparently should only work as a deterrent, rather than an inspiration. The power to censor through copyright must remain intact. Because piracy. (Or something.)
It all seems to boil down to "We like what we have right now, but some more would be even better." The protections granted during the analog era hardly match up with the digital reality, but somehow these copyright-reliant industries believe the future belongs to the past. No concessions are made to current reality. If any changes are made, they want to make damn sure they're the only beneficiaries.
It's not all bad news from the normal players, though. A few more reasonable responses made their way into the submission pile. A group of literary agents makes a couple of good points.
Currently only moral rights are an absolute rights. More rights must be made absolute, for example statutory rights. Some organizations demand these rights be taken away from the creator. Many organizations are bullish contractually with creators in regard to statutory rights. Accordingly a lot of money goes to international corporations instead of Australian creators.
Most people want to do the right thing and compensate the creators of copyright for the use of their work in other forms - give people the means to do this. Make it easy for them to pay the copyright owners, no matter how small the payment is.
I don't think the digital environment really has changed anything. What has changed over time is that copyright law here has been following that of the USA which serves some big media company interests but acts against artists and smaller media companies...
If the taxpayer paid for the creation of the content then it should be free to use by all. The system of the public pays and pays and pays ... does much to diminish respect for the law...
Brief quotes for purposes of comment, analysis, or parody should be allowed. The USA used to have something called "fair use doctrine", it is time to revive it. Also, the length of copyright, especially for music and recordings, and perhaps even films, needs to be shortened to something like 10 or 15 years. History should not be copyrighted...
Libraries and universities should be able to copy everything that they bought a copy of. They should not have to keep on paying and paying and paying when the media wears out...
His whole response text is worth reading, but sadly, one of the few to go against the prevailing winds of maximalism. Australia's attempt to update its copyright laws faces an uphill battle against those who like it the way it is, or even better, the way it was. Nearly fifty years down the road from the last update of its copyright laws and a majority of the respondents prefer stasis to moving ahead.
Australia's R18+ classification for video games came into effect yesterday.
Until Jan. 1, 2013, Australia was one of the few developed countries in the world to not have an R18+ classification for video games. The highest rating for video games was MA15+, which meant that any game that the country's Classification Board found too mature for the MA15+ category was Refused Classification and effectively banned from sale.
Now, one possessing a bit of logic might ask why Australia needs an R18+ when it already has a MA15+ rating, which would presumably cover everyone above the age of 15. Well, that's where the Australian government's insistent infantilism of gamers comes into play. If the game was deemed to be too something for 15-year-olds, it was refused classification. If you were the proverbial 30+ year-old "average gamer," you were limited to games appropriate to the 15-and-under set. Sure, you could still get some of the more mature hits, but only after they'd been de-fanged, de-bloodied and de-profanitized.
South Australia's Attorney General is fully behind the new rating, which should allow many, many gaming adults to finally play titles the rest of the world has been enjoying for years already.
We've actually achieved a good balance where in effect MA15+ has become more restrictive and games that previously would have been in MA15+ are now going to be sitting in R18+. It's a win for the gamers who wanted to have the opportunity as adults to purchase these games, but it's also a win for parents because they can be more confident that games that are age-inappropriate will not be available to people under 18.
Older titles will not automatically receive the new rating and must be resubmitted. And there's still a chance that the government will choose to refuse classification on any number of games, even with this new rating in place. It's a long-past-due step in the right direction for a government that has been extremely hesitant to let gamers sit at the "adult" table.
"The current guidelines have six criteria (themes, violence, sex, language, drug use, nudity), which are slowly becoming less and less important," Curry says. "There are other things that parents are worried about: they're worried about user-generated content, they're worried about privacy, they're worried about access to children chatting with adults, they're worried about gambling, they're worried about in-game purchases and geo-locating.
"So if we're going to look at classification, we need to ask, 'Why do we classify?' We classify to give people information about content, mainly for parents, the argument goes. Are we addressing their concerns? Probably not."
In the future, it might be that parents will be better served with a list of possible "side effects" of the games their children are playing, much in the way that many apps list the "permissions" it will be granting itself if downloaded and installed. It could very well be that privacy concerns will trump hand-wringing over pixelated violence in the future, as the former becomes a scarcer commodity. But for Australia, recognizing that adults make up a majority of gamers is a good start, even if it is long overdue.
from the suing-algorithms-for-fun-and-profit! dept
Another day, another lawsuit filed against Google for defamation-via-search-results. And, yet again, it's being filed in a country that has proven amenable towards plaintiffs who somehow feel a search algorithm has the power to defame.
Guy Hingston, an Australian cancer surgeon, sued Google in Federal Court.
"When an individual computer user types 'Guy Hin ...', into the Google search engine as a search, the words 'Guy Hingston Bankrupt' appears," the complaint states. "When the link(s) is clicked on, the article(s) to which the user is directed has absolutely nothing to do with a bankruptcy associated with Dr. Hingston. Dr. Hingston is not bankrupt." (Parentheses and grammar as in complaint).
"Dr. Hingston is a surgeon practicing in Port Macquarie, New South Wales, Australia," the complaint states. "Dr. Hingston's surgical practice focuses on breast cancer. Given his professional practice and position in his community, maintaining his good reputation is critical. Dr. Hingston has lost a number of patients and financiers who are refusing to associate and/or deal with Dr. Hingston as a consequence of the reference on Google to a bankruptcy."
Port Macquarie surgeon Guy Hingston bought the 19-year-old business 2½ years ago.
Dr Hingston said the main reason for CoastJet’s demise was the loss of a $2.8 million deposit on two new jets when American company Eclipse Aviation Corporation went into bankruptcy. The business was made more vulnerable, he said, by its heavy investment in a new partnership with Sweden’s Lund University School of Aviation.
He said CoastJet was preparing for its first intake of 24 students from Sweden at the end of March.
Dr Hingston said he and CoastJet’s staff were devastated. “We had two jets we were about to take delivery of, but with the manufacturer going bankrupt, we’ve lost everything,” he said.
The jets were destined to for CoastJet’s growing air ambulance service, Dr Hingston said, as well as for international airline pilot training and charters.
A later story appears at the same site, detailing the eventual sale of CoastJet to a Chinese investor, which again mentions bankruptcy and liquidation. Both of these stories make Hingston's claim that "Guy Hingston bankrupt" link leads to article(s) that "have absolutely nothing to do with a bankruptcy associated with Dr. Hingston" completely false. He may not like the perception the words "Guy," "Hingston" and "bankrupt" give when placed next to each other in an autocomplete suggestion, but there's nothing inherently defamatory about having those words appear next to each, especially when it produces relevant search results.
Hingston claims Google's automatic search result is defamatory, show him in a false light, and are "highly offensive to a reasonable person."
He claims Google was "was negligent in determining the truth of the information or whether a false impression would be created by its publication."
"This issue, and Google's continued failure to remedy this issue, despite numerous demands to do so, has caused significant harm and economic loss to Dr. Hingston in excess of the minimum jurisdiction of this court," the complaint states.
Hingston seeks at least $75,000 in damages for false light, and court costs.
But the search isn't "negligent" or "highly offensive," unless the person searching for Hingston does nothing more than stare at the completion suggestion and draw all their conclusions from that single, incomplete phrase. Hingston is the only person "offended" by this search suggestion, and any "negligence" is solely on the heads of financiers, etc. who are unwilling to perform even the slightest bit of due diligence when researching Dr. Hingston. Every other link for Hingston points you in the direction of his apparently successful practice and book sales/public speaking sideline. And it must be pointed out again that Hingston is suing over one autocomplete suggestion, rather than the results of those searches.
It's really hard to see how this will come down in favor of the plaintiff, but then again, if judicial systems didn't occasionally head off the deep end, lawsuits like this one would very rarely be filed.
You may remember iiNet, the Australian ISP that Hollywood attacked (with support of US State Department officials) after they decided that it was too small to fight back, but big enough that people would notice. They guessed incorrectly, and iiNet not only fought back by taking a strong pro-consumer view, but won in convincing fashion. Even more importantly, as we noted, the courts made it clear why it's silly to expect third party service providers like ISPs to be copyright cops, since establishing infringement "is not a straight 'yes' or 'no' question," but rather involves going through a lot of evidence and evaluating it.
Since then, Hollwyood has continued (via the Australian government) to pressure ISPs to step up to become copyright cops anyway, and iiNet has participated in those discussions. But late last week it walked away from the discussions after Hollywood folks kept demanding a system similar to the US's in which ISPs would send along notices to people they accused of infringement. iiNet gave a bunch of good reasons for walking away, but the basic message was that piracy is a problem that the entertainment industry could solve itself by making all of its content available more conveniently and at better prices. Until it does that, it's silly to rope in third parties to try to hold back the tide.
A broken record
The conversation has failed to move on. The rights holders are still insisting ISP's should perform work on their behalf instead of addressing what we have always said is the root cause of the infringements – the limited accessibility to desirable content and the discriminatory and high cost of content in Australia. Infringements are a symptom – access is the problem.
Data retention proposals
iiNet won't support any scheme that forces ISPs to retain data in order to allow for the tracking of customer behaviour and the status of any alleged infringements against them.
Collecting and retaining additional customer data at this level is inappropriate, expensive and most importantly, not our responsibility.
It's not iiNet's job to play online police
We've been over this before.The High Court spoke loud and clear in their verdict when they ruled categorically that ISPs have no obligation to protect the rights of third parties, and we're not prepared to harass our customers when the industry has no clear obligation to do so.
It's time to find a new way
We believe that timely, affordable access to legitimate content is the best option for reducing unauthorised sharing.
The problem, of course, is that the entertainment industry still doesn't understand what's happening. They flat out reject the idea that piracy might be due to their own unwillingness to embrace the internet and provide more content, in more convenient ways at better prices. So, instead, they believe that everyone else should be responsible for fixing the entertainment industry's own mistakes. It's nice to see iiNet call them out so directly.
It's been a while since we checked in on Julian Assange. Last we heard, the United States had just classified Wikileaks as an "enemy of the United States," but that was all the way back in September. This, of course, was after Assange had been granted asylum in the Ecuadorian embassy in the UK. With what has to seem like the entire world crumbling down around him, I'd have to guess that Assange is keeping a low, mum's the word profile.
Mr Assange said plans to register an Australian WikiLeaks party were ''significantly advanced''. He indicated he would be a Senate candidate, and added that "a number of very worthy people admired by the Australian public" have indicated their availability to stand for election on a party ticket.
Yes, Julian Assange, currently confined to Ecuador's embassy, is going to start his own political party. While many have focused on the news that he's running for Senate, that's not actually new -- having been previously reported back in March. In case you thought you had somehow slept through news that the US had dropped its investigation of Wikileaks or that Sweden no longer wanted to extradite him, you haven't: both issues are existing issues that might, possibly, get in the way of Assange actually serving as an elected official. However, as a wider party, what would the Wikileaks party stand for?
He said a WikiLeaks party would advance WikiLeaks' objectives of promoting openness in government and politics, and it would combat growing intrusions on individual privacy.
A laudable goal, and one that might find natural allies with The Pirate Party. Still, while (as with many things Assange-related) this has the feel of a publicity stunt, there's a chance that the more interesting idea is what will happen if the Wikileaks Party can really find others to be members and run for office:
If Mr Assange were elected but he was unable to return to Australia to take up his position, a nominee would occupy a Senate seat.
So, perhaps the real goal is to have someone high profile, like Assange, spearhead the effort of building out a party focused on these issues, even if there's little chance he can actually serve. Well, that or this is another example of Assange being a genuine pain in the ass.
Unsurprisingly, many representatives of legacy industries have responded with suggestions that the status quo be protected and any major or minor modifications of current law in favor of "fair dealing" or "exceptions" be discarded immediately. If any changes have to be made, these industries would prefer that they skew entirely in their direction. For some reason, the MPAA has chimed in, despite the fact that this entity's views on copyright are widely known, thanks to the fact that it never, ever shuts up about it.
The MPAA's response (RTF) opens up with stating it support of the Australian Film Bodies' views, before gently (but firmly) reminding the ALRC that Australia signed some very skewed and restrictive trade agreements with the US, lest there be any questions about which country's rules it should be following.
While both the Terms of Reference and the “Guiding Principles” make reference to Australia’s copyright law obligations with respect to copyright, it is important to recognize that these are not simply random or uncoordinated requirements with which Australia has agreed to comply. Australia is an active participant in an evolving international dialogue that articulates comprehensive norms and minimum standards for participation in an dynamic global marketplace in works of authorship and other copyright materials... In addition, the copyright and enforcement provisions of the Australia-United States Free Trade Agreement (AUSFTA) are of particular significance, not only because AUSFTA was, at the time of its adoption, a state-of-the-art pact between Australia and one of its most important trading partners, but also because it has contributed significantly to the template for the Trans-Pacific Partnership (TPP) Agreement negotiations, in which Australia is now actively engaged along with ten other trading partners around the Pacific Rim.
The MPAA goes on to point out that the "three-step test" for limitations and exceptions to existing copyright law means that no one's going to be creating blanket exemptions for "private use" or "backup copies" which, according to the MPAA "falls well short of compliance with global norms." The MPAA also warns the ALRC to not get any funny ideas about adopting American-style "fair use," something it enjoys using ("MPA members, who, after all, are users as well as creators of copyrighted works, depend upon it in their business and creative operations...") much more than it enjoys being forced to respect it.
The enactment as part of Australian law of a new system based on the fair use doctrine would not bring with it this century and a half of judicial precedent that allows counsel, and the companies and individuals they advise, to rely upon the doctrine. Indeed, at its introduction, the new system would be unsupported by any binding precedent at all.
Hmm. I would imagine our fair use doctrine began without any binding precedent as well, because when things start, it's usually on the ground floor. Then there's this bit of hypocrisy, considering the MPAA spent a couple of paragraphs reminding the ALRC that it was subject to trade agreements composed by the USTR, an American entity.
Since it is inconceivable that, as part of any new system of copyright exceptions in Australia, its courts would be directed to slavishly follow U.S. precedent, it is inescapable that there would be considerable uncertainty about the resolution of claims based on the new system in Australian courts. This is likely to create a deleterious level of unpredictability for copyright owners, copyright users, and the public. Whatever social benefits might fairly be attributed to the fair use doctrine under U.S. law would be unlikely to survive the passage across the Pacific to Australia.
"Inconceivable." The MPAA keeps using that word. I do not think it means what it thinks it means. The MPAA has clearly pushed for Australia, along with many other countries, to follow US precedent when it comes to copyright length, restrictions and enforcement. Those negative aspects seem to "survive the passage" without any deleterious effects. But somehow, "fair use" just can't make the trip unscathed.
Judging by the followup paragraph, it looks like the only reason fair use couldn't make its way across the ocean is because the MPAA would have its boat scuttled and its crew tossed overboard to be eaten by shrieking eels. Here's the MPAA's real fear: someone might get something for free!
An additional uncertainty involves the impact of a change in Australian law on existing licensing agreements. Since the likely purpose, and even more likely a result, of borrowing from fair use to amend Australian law would be to expand, at least to some degree, the scope and applicability of exceptions to copyright protection, it is almost inevitable that some licensees would be compelled to re-examine whether they any longer needed to obtain a license for particular uses, or whether they could instead rely upon the expanded exception resulting from the new fair use provision.
The MPAA states that any new exemptions would "destabilize settled markets for the licensing of copyrighted material." Good old MPAA. It loves "settled markets." The IP world has been changing very quickly over the last 15 years, but the MPAA's ongoing response is determined stasis, making it look for all the world like a plate spinner who's down to his last plate, but is spinning the HELL out of it, all the while yelling "NOBODY TOUCH ANYTHING!"
With Google still holding the search engine crown, they're obviously going to be the target of a myriad of lawsuits. Defamation has played a role in the legal life of the search giant for some time now, even though the entire basis for technology behind the search results is in what the internet community at large does, rather than any active role by Google. That's what makes this kind of thing so silly. We previously wrote about autocomplete defamation cases, for instance, in which autocompletes are generated based on common searches, but people still want to hold the search engine accountable. We also had the story about the minority owner of the Miami Heat who didn't like the fact that a picture of him doing his best dog-with-peanut-butter-in-its-mouth impression showed up in search results. But, hey, at least he was suing over a picture that actually was him.
Not so for Milorad Trkulga, an elderly man from Melbourne, Australia, who has been awarded $200,000 from Google because the search engine's image results also conjured up pictures of Tony Mokbel, an apparent "Australian gangland figure."
The images were posted after Mr Trkulja was shot in the back by an unknown gunman while eating with his elderly mother at a St Albans restaurant in June 2004. When Mr Trkulja's name was typed into Google's image search, photos had appeared of him alongside gangland figure Tony Mokbel.
From what I can gather at the following related link, Trkulja was indeed shot while at a restaurant as part of some kind of infamous gangland wars that occured in 2004, hence the bridging link to a gangster. When news publications wrote up the story, they included images of both Trkulja and Mokbel, which likely caused their pictures to show up together in a search of the former's name. Trukulja, for reasons that escape me, thought that this was defamation and took Google to court. Google argued that they weren't publishing any of the material, only indexing search results. This, apparently, did not impress the jury.
However, the jury found Google's defence of the images broke down because it did not take any steps to remove the images from its searches once Mr Trkulja's lawyers contacted the company. The jury found the search engine was not liable for the search results themselves, as Mr Trkulja had incorrectly filled out a form for reporting offensive material by not including the URL of the content to which he objected.
And this is where I go from bemused to confused, so perhaps there's an expert in Australian law out there somewhere who can help out on this one. The jury decided that Google merely indexing results doesn't matter if Trkulja asked them to take the images off of search results, even though the jury acknowledges they aren't liable for those results and find that Trkulja didn't provide the actual URLs of the pictures he wanted removed. That would be like me walking up to a random person on the street, tapping them on the shoulder, telling them I didn't like something they said once but couldn't remember exactly what it was that offended me, demanded an apology, and then got a free down payment on a mansion when said random person didn't comply.
Beyond that...what the hell? So images of gangsters showed up in image results because you got shot in Australian gangland wars (seriously, I thought you guys all fought with machetes). How is any of this a problem? I imagine that if you have an atypical name, search results of all kinds of people are going to show up in Google. Hell, let's just test it out with my own name and see what happens. I'm sure the first image result of my name, Timothy Geigner, won't be all that bad.
Oh, hell no. This injustice will not stand. Mike, get our lawyers on the phone. It's mansion time.