Let's start off with this: there's no legitimate way to defend Zane Alchin, a guy in Australia who appears to be an all around horrible person. He went on Facebook, and after seeing a friend of his post (and mock) a woman's Tinder profile, proceeded to post a whole bunch of pretty horrible and misogynistic posts on Facebook, including some pretty horrifying statements about "raping feminists." I won't post any of his other comments, though they're covered in some of the articles written about the case. Alchin, who now claims he was just drunk and trolling, and also insisted he wasn't breaking any laws, has since discovered that apparently he was breaking a weird Australian law, for which he's now pled guilty.
While Alchin admitted to posting the comments, he told police during an interview that "he was drunk at the time and the comments do not represent what he is about", the court documents said.
He said he was "internet trolling", the documents said, and was unaware it was a crime.
In January, Alchin entered a plea of not guilty to the offence, which carries a maximum penalty of three years' imprisonment.
But during a brief court appearance on Monday, his lawyer said his client would now plead guilty. Alchin is due to be sentenced on July 29.
The law in question is 474.14 of the Commonwealth Criminal Code that is insanely vague. It basically says it's against the law to use a telecommunications network to "commit a serious offense." But "serious offense" is basically left unclear. The charges against Alchin said that he used the internet to "menace, harass or cause offence." And many in Australia are pointing to the case as a landmark case against online harassment.
Again, Alchin appears to be a creep who deserves to have his name dragged through the mud for what he wrote online, but the idea that he's now facing three years in jail for what amounts to criminal "trolling" seems extreme and extremely problematic. We've certainly seen that Australia is no fan of free speech, with several questionable court rulings in the past few years, but criminalizing trollish behavior online seems like the kind of thing that is going to backfire in a big, big way. Lots of people say stuff online that may "cause offense." I'm offended by the idea that people face jail time solely for being jerks.
But when you criminalize offending someone, you actually hand tremendous power to people to attack others over "being offended." There seems to be this rush to try to criminalize speech people don't like, when it seems like most of this issue could easily be solved with simply more counterspeech. Shame Alchin all you want for being a jackass, but don't put him in jail.
from the after-all,-it's-only-democracy-that's-at-stake dept
The fact that Techdirt has been writing about e-voting problems for sixteen years, and that the very first post on the topic had the headline "E-voting is Not Safe," gives an indication of what a troubled area this is. Despite the evidence that stringent controls are still needed to avoid the risk of electoral fraud, some people seem naively to assume that e-voting is now a mature and safe technology that can be deployed without further thought.
In Australia, for example, e-voting is being used for the elections to the country's Senate, but the Australian Electoral Commission (AEC) has refused to release the relevant software, despite a Senate motion and a freedom of information request. Being able to examine the code is a fundamental requirement, since there is no way of knowing what "black box" e-voting systems are doing with the votes that are entered. A story by the Australian Associated Press (AAP) explains why AEC is resisting:
The Australian Electoral Commission referred AAP to a decision by the Administrative Appeals Tribunal [AAT] in December 2015.
In that decision, relating to a freedom of information request, the tribunal found the release of the source code for the software known as Easycount would have the potential to diminish its commercial value.
"The tribunal is satisfied that the Easycount source code is a trade secret and is exempt from disclosure," the AAT said.
Placing trade secrets above the public interest is a curious choice, to say the least. It seems particularly questionable given Australia's recent experience with e-voting software problems:
When the ACT Electoral Commission released its counting code, researchers at Australian National University found three bugs which were subsequently fixed before an election.
When the Victorian Electoral Commission made its electronic voting protocol available to researchers in 2010, University of Melbourne researchers identified a security weakness which was then rectified before the state election.
As Techdirt readers well know, bugs are commonplace, and there's no particular shame if some are found in a complex piece of software. But refusing to allow independent researchers to look for those bugs so that they can be fixed is inexcusable when the integrity of the democratic selection process is at stake.
So we already wrote about the Australian government's Productivity Commission's Draft Report on Intellectual Property Arrangements, talking about what was said about copyright law, but the report also goes into other areas of intellectual property as well, with some pretty good ideas on patent law as well (on this one I think they could go even further, but most of the recommendations in the report are a good start).
Once again, they offer up a nice infographic demonstrating the key points, which focuses on the serious problems of allowing patents on obvious ideas:
The Productivity Commission clearly recognizes that too many patents stifle innovation. In fact, they note that the only time patents really should be issued are in cases where those inventions would not occur without that incentive. And thus, since so much public policy around innovation always seems to focus on figuring out ways to increase patent numbers, the authors of the report recognize that patent policy is probably harming, not helping innovation:
Indeed, it appears to have become accepted wisdom that because patenting plays some role in promoting innovation, more and stronger patents are always better. But research reveals that greater patenting activity is not always associated with more innovation and that a non-trivial number of patented inventions have low social value, or would have occurred anyway.
Low-value patents impede innovation by frustrating the efforts of follow-on innovators and researchers. In some cases, low-value patents can be used as a strategic tool for stalling or excluding market entry, and can contribute to ‘patent thickets’, which potential market entrants must ‘hack’ their way through in order to compete in a particular technology space.
And thus, they suggest that Australia's entire patent system should be rethought and refocused towards trying to encourage things that are socially beneficial. That is, the system should be set up not with the inventors as the sole focus, but rather what will lead to the greatest possible public benefit. And the failure to do so is creating "substantial costs" on the public.
While the incidence of some low–value patents does not come as a surprise, a multitude of such patents imposes substantial costs on the community. Low-value patents impede innovation by frustrating the efforts of follow–on innovators and researchers.
To fix this, they have a few suggestions -- all of which seem worthwhile. First, they say the bar is way too low for granting patents, so Australia should raise the bar for what's considered "inventive." They suggest the standard should be changed to if the invention or solution "would have been obvious for a person skilled in the art to try with a reasonable expectation of success." They even consider going beyond that, but recognize that some patent holders outside of Australia may freak out at such a suggestion and avoid the Australian market.
The second suggestion is giving an "overarching objective" to patent law, which examiners can use as a sort of guiding light or touchstone. Basically, allow Australia to reject patents by arguing that granting such patents would go against the public interest.
The objects clause should describe the purposes of the legislation as being to enhance the wellbeing of Australians by providing patent protection to socially valuable innovations that would not have otherwise occurred and by promoting the dissemination of technology. In doing so, the patent system should balance the interests of patent applicants and patent owners, the users of technology — including follow–on innovators and researchers — and Australian society as a whole.
The Australian Government should amend the Patents Act such that, when making a decision in relation to a patent application or an existing patent, the Commissioner of Patents and the Courts must have regard to the objects of the Patents Act.
That would be a big and wonderful change to the patent system.
Next up, they suggest increasing the fees associated with patents (both for applying and for renewals -- which would escalate), which acts as a mechanism to better ensure that a patent is valuable (i.e., making it less worthwhile if the patent holder isn't actually going to do something with it). It also encourages patent holders to stop renewing the patent and push the info into the public domain sooner if the patent itself is no longer making an economic return.
The report doesn't spend much time on patent trolls, noting that they're not a big problem down under, and suggests that the existing "loser pays" litigation structure probably helps keep patent trolling at a lower level there. At the very least, that seems like an important data point for folks here in the US looking to add a "loser pays" provision in patent reform.
How about business method and software (BM&S) patents -- which make up many of the most abused patents in the US? The Commission is not impressed by the arguments in favor of such patents and suggests making those things unpatentable. They point out that there's little evidence that such patents encourage innovation, and that most innovation associated with them almost certainly would have happened without the patents, because the focus was on building products (and that there would be first mover advantages for those who got there first, so the copycat issue isn't that big a deal). Furthermore, they point out that BM&S patents can often hold back important follow-on innovations. Quoting Nobel prize winning economist Eric Maskin, the report notes:
Specifically, in the software industry, progress is highly sequential: progress is typically made through a large number of small steps, each building on the previous ones. If one of those steps is patentable, then the patent holder can effectively block (or at least slow down) subsequent progress by setting high license fees. … Thus, in an industry with highly sequential innovation, it may be better for society to scrap patents altogether than try to tighten them.
And they conclude:
On balance, the Commission considers it unlikely that granting patents in the area of BM&S increases the welfare of the community. BM&S patents likely compensate activity that would have occurred in any event (are nonadditional) and reward low– (or even no–) value innovations. BM&S patents can also frustrate would–be competitors and follow–on innovators. While broader changes to patents, particularly around the inventive step and dispensing with innovation patents (chapters 6 and 7), may ‘knock out’ a large share of BM&S patents, the Commission still considers that there is value in making clear that BM&S should not be considered patentable subject matter.
There's a separate section on pharmaceutical patents, recognizing that the market factors there are somewhat different. Obviously, the pharma industry relies more heavily on patents. But they also note that Australia has a public policy need to "improve the health of all Australians." They suggest that the government shouldn't be as willing to hand over "extensions of terms" on phama patents, and should only do so in specific cases.
On the related question around data protection and biologics (a key sticking point in the TPP negotiations), the report finds that the policy should be designed to encourage much more openness and information sharing, rather than locking up information and biologics for too long.
There should be no extension of the period of data protection, including that applicable to biologics.
Further, in the context of international negotiations, the Australian Government should work with other nations towards a system of eventual publication of clinical trial data in exchange for statutory data protection.
These all seem like decent suggestions, though I still think they could go further. For years I've pushed for an independent inventor defense and for independent invention being a sign of obviousness (such that it might invalidate a related patent from someone else). That concept doesn't seem to make it into the report.
Still, as with copyright, the report's authors do seem to understand the key problems of the patent system in working against innovation.
And, once again, this is fairly amazing. The stunning thing about this report is that it pushes back on a lot of the accepted -- but bogus -- wisdom around copyright and patents that just gets repeated without question in most government reports. Kudos to the authors of the report.
Three years ago, down in Australia, the Australian Law Reform Commission started examining various copyright reform proposals, and eventually made a rather mild suggestion: bring fair use to Australia. Frankly, we felt that the Commission could have gone much further, but it basically said to copy the American approach to fair use. Not surprisingly, Hollywood flipped out, claiming that it would "lead to an increase in piracy." And, soon after that, the new government, led by Attorney General George Brandis flat out ignored the report and pushed for expanding copyright against the public interest, and very much towards exactly what Hollywood wanted. This wasn't all that surprising, given that it was revealed that Hollywood representatives spent a lot of time with Brandis, while he deliberately avoided meeting with representatives of the public.
But, in a bit of a surprise, last week, a different Australian government commission, the Productivity Commission, released one of the most amazing reports on copyright that you'll see out of a government body. The Productivity Commission is a government agency designed to give independent advice to the government -- and had been tasked with exploring how well Australia's intellectual property laws were working.
In short, the answer provided by the commission is: not well.
Just take a look at the infographic the Commission pushed out along with the report, which is titled "Copy(not)right."
The whole section on the problems of copyright as currently in place in Australia is worth reading. They don't pull many punches:
Australia’s copyright arrangements are weighed too heavily in favour of copyright owners, to the detriment of the long-term interests of both consumers and intermediate users. Unlike other IP rights, copyright makes no attempt to target those works where ‘free riding’ by users would undermine the incentives to create. Instead, copyright is overly broad; provides the same levels of protection to commercial and non-commercial works; and protects works with very low levels of creative input, works that are no longer being supplied to the market, and works where ownership can no longer be identified.
Like the report from three years ago, this report strongly supports fair use (citing that report in part), and their proposal in that area is really strong too. For years now, here at Techdirt, we've argued against calling fair use a "limitation and exception" to copyright, because that's misleading. Fair use is about the public's rights. And it appears that the Commission agrees, titling its section on fair use: "A new system of user rights."
In that section, the Commission notes that fair use is important in making sure that copyright law only is used to "target those works where 'free riding' by users would undermine the economic incentives to create and disseminate works." This should make intuitive sense to basically everyone. Copyright is much more defensible if it's only used in cases where infringement is undermining the incentives to create. But where that's not happening, then claiming infringement seems inappropriate.
The report then supports the basic four-factor test as used in the US. It also points out that the main complaint against this approach by legacy copyright industry players -- that because there's no case law, it would lead to a big litigation mess -- was unfounded and suggests a workaround to make the transition easier:
In the Commission’s view, legal uncertainty is not a compelling reason to eschew a fair use exception in Australia, nor is legal certainty desirable in and of itself. Courts interpret the application of legislative principles to new cases all the time, updating case law when the circumstances warrant doing so.
To reduce uncertainty, the Commission is recommending Australia’s fair use exception contain a non-exhaustive list of illustrative uses, which provides strong guidance to rights holders and users. Existing Australian and foreign case law, particularly from the United States where fair use has operated for some time, will provide further guidance on what constitutes fair use.
Later in the more detailed part of the report, the Commission is even more direct in refuting (in great detail) each and every objection by the legacy copyright industries. In fact, they have a whole callout box that picks apart the ridiculous claims by various legacy copyright players on the "costs" of fair use:
It also notes that the fair use recommendation from three years ago should be the starting point for reform, representing the "minimum level of change" and suggesting Australia go much further, specifically in exempting orphan works and "out-of-commerce" works.
Yes, you read that right, the Commission is suggesting a "use it or lose it" feature for copyright:
The lack of any requirement for rights holders to actively supply the Australian market reduces the efficiency of Australia’s copyright regime. Demand for works that have been created, but are not being supplied, reduces consumer welfare and the profits of intermediaries and original rights holders. Where a rights holder has made a choice not to supply their works to the market (or refuses to supply a market), granting consumers access to that work, such as through a fair use exception, improves consumer wellbeing without reducing incentives to create copyright works. By definition, if a work is not being supplied to the market, concerns about copying and ‘free riding’ are moot.
While this will undoubtedly be shocking to many in the copyright space -- the report points out that such features are common in other areas of intellectual property law.
From there, the report points out how ridiculous geoblocking is, and says that getting around those blocks should not be seen as infringement:
The use of geoblocking technology is pervasive, and frequently results in Australian consumers being offered a lower level of digital service (such as a more limited music or TV streaming catalogue) at a higher price than in overseas markets. Studies show Australian consumers systematically pay higher prices for professional software, music, games and e-books than consumers in comparable overseas markets. While some digital savvy consumers are able to avoid these costs (such as through the use of proxy servers and virtual private networks), many are relegated to paying inflated prices for lower standard services.
The Australian Government should make clear that it is not an infringement of Australia’s copyright system for consumers to circumvent geoblocking technology and should seek to avoid international obligations that would preclude such practices.
Also, not surprisingly, the report finds that copyright terms are ridiculously long and that harms the public massively:
The evidence (and indeed logic) suggests that the duration of copyright protection is far more than is needed. Few, if any, creators are motivated by the promise of financial returns long after death, particularly when the commercial life of most works is less than 5 years.
Overly long copyright terms impose costs on the community. Empirical work focussing on Australia’s extension of copyright protection from life plus 50 years to life plus 70 years (a requirement introduced as part of the Australia–United States Free Trade Agreement) estimated that an additional 20 years protection would result in net transfers from Australian consumers to foreign rights holders of around $88 million per year. But these are likely to be a fraction of the full costs of excessive copyright protection. The retrospective application of term extension exacerbates the cost to the community, providing windfall gains to copyright holders with no corresponding benefit.
The report even suggests that a copyright term of maybe 25 years seems a lot more appropriate, based on actual empirical studies (what a concept: not basic copyright policy entirely on faith).
The report also states what many of us have argued for years, but which seems like something that rarely comes up in "respectable" conversations around copyright: if the copyright is being used outside the "incentive to create," then it makes no sense:
Unlike other IP rights, copyright makes no attempt to target those works where ‘free riding’ by users would undermine the incentives to create. Instead, copyright is expansive and ‘all encompassing’, providing the same levels of protection to commercial and non-commercial works, to works with essentially no degree of creativity, to works that are no longer being supplied to the market, and to works where ownership can no longer be identified. This leads to copyright covering works that require no incentive for creation, and works that have exhausted their commercial life and are no longer available. Beneficial uses of such material are unrealised. Accordingly, the current Copyright Act is weighted too heavily in favour of copyright owners, to the detriment of the long-term interests of users.
Finally, the report notes that international trade agreements are doing a terrible job constraining Australia and blocking its ability to fix the many problems of copyright and to implement the sensible recommendations in the document. This is quite telling, since Australia was actually one of the voices in the TPP negotiations pushing for expanded copyright. This report is basically slapping those negotiators and pointing out that what they're doing runs directly counter to the public interest. After pointing out the state of these agreements, the report notes:
a consequence of embodying so much of our IP provisions in international agreements is that Australia is significantly constrained in reforming its IP arrangements
The report also notes that greater enforcement against individuals for file sharing or intermediaries for providing tools has "only had a modest impact," and that the real way to decrease piracy is not to ratchet up the law, but to make more legal content available:
Changes to the law to encourage Internet service providers to cooperate with rights holders, as well as litigation, have only had a modest impact in reducing infringement. Further legislative change is unlikely to improve compliance with the law.
Instead, evidence suggests infringement declines with better content availability and most consumers prefer paid, legal consumption. As such, an effective approach to reducing infringement is the timely release of content to Australian consumers. This requires action by rights holders and their intermediaries.
Honestly, this is the most thorough and amazing document on copyright I've ever seen come out of a government body (we'll address its coverage of patents in another post...). It's level headed and reasonable and actually hits on most of the key "big issues." I'm guessing that it's so right on and so detailed... that it will be (1) attacked viciously by legacy players and (2) ignored by lawmakers when it comes time to actually reform the system. Oh, and while the report is technically under copyright (Australia has crown copyright, which allows government works to be under copyright), the authors wisely have slapped a CC-BY license on it, meaning that we can share it here as well.
Last summer, we wrote a bit about the Regional Comprehensive Economic Partnership (RCEP), a trade agreement that is being worked on by a bunch of Asian countries, and which is often described as an "anti-TPP" or, at the very least, a competitor to the TPP. It's being driven by China and India -- two countries who were not in the TPP process. Given how concerned we were with the TPP, we had hoped, at the very least, that RCEP would be better on things like intellectual property. Unfortunately, some early leaks suggested it was even worse. And while the TPP is still grinding through the ratification process in various countries, RCEP has continued to move forward, and the bad ideas have stuck around.
The RCEP will be a massive trade agreement and the content of the IP Chapter is important. It will bind India and China, two countries left out of the TPP. Japan and Korea are trying to push many of the worst ideas from ACTA, TPP and other trade agreements into the RCEP IP Chapter. Some of the issues that negotiators did not understand in the TPP, such as the damages provisions, are also lurking in this text, creating risks that negotiators will do worse than they think, because the secrecy of the negotiations insulates the negotiators from timely feedback on technically complex issues. Japan and Korea are pushing for test data monopolies, without the same safeguards available to patent monopolies. There are proposals for patent extensions, restrictive rules on exceptions to copyright, and dozens of other anti-consumer measures, illustrating the power of right-holder groups to use secret trade negotiations to limit democratic decisions that impact access to knowledge, the freedom to innovate and the right to health, in negative ways.
The TPP is not good on intellectual property (at all). But seeing RCEP apparently be just as bad, if not worse, is not exactly encouraging. As I've said in the past, I think free trade is an important ideal, but free trade agreements are increasingly about something entirely different, and it's about backdoor (and backroom) mechanisms for putting in place regulatory frameworks that favor certain legacy players.
One of central claims made by supporters of corporate sovereignty chapters in trade deals is that companies "need" this ability to sue the government in special tribunals. The argument is that if the extra-judicial investor-state dispute settlement (ISDS) framework is not available to a company, it will be defenseless when confronted with a bullying government. A new case in Australia shows why that's not true. A column in The Sydney Morning Herald provides the background, which concerns a US company called Nucoal:
In 2013, the NSW [New South Wales] Independent Commission against Corruption found that there had been corrupt conduct relating to the granting of mining licences to Nucoal and other mining companies and the NSW government cancelled the licences.
Naturally, Nucoal unleashed its lawyers:
[Nucoal] demanded compensation of more than $900 million in Australia's High Court, claiming the decision to cancel its licence without compensation was unconstitutional and had reduced the value of the company. The High Court found in April 2015 that under Australian law Nucoal was not entitled to compensation.
Now Nucoal had a problem. Normally, a company in this situation would invoke the corporate sovereignty chapter in a relevant trade deal, and move the case to secret ISDS tribunals, which were likely to be more favorable to its cause than the independent national courts. But with unusual foresight, Australia refused to accept ISDS in the 2004 AUSFTA trade agreement between the US and Australia -- which makes its decision to acquiesce to ISDS in TPP doubly foolish. Despite what fans of corporate sovereignty claim, Nucoal still has another option at this point:
Nucoal is pressuring the US government to put a case to the Australian government that the denial of compensation has violated the general investment terms of the [AUSFTA] agreement. This could result in a formal complaint from the US government demanding trade sanctions against the Australian government.
Last week The Australian reported that the CEO of the US Chamber of Commerce in Australia has announced that the US government will raise the issue in a closed-door review of the AUSFTA to be held in May.
That is, unable to avail itself of the investor-state dispute mechanism, Nucoal now wants to take advantage of the state-state dispute settlement process (pdf) whereby the US government formally complains to the other government concerned. Now, whether the US government should really be taking up a case involving corruption is another question. The key point is that it is not absolutely necessary to include corporate sovereignty provisions in a trade deal to protect companies, because there is always the state-to-state mechanism that can be invoked if necessary.
It was evident when the "three strikes" or "graduated response" was first proposed in France back in 2009 that it was a really bad idea. After all, in its crudest form, it cuts people off from what has become a necessity for modern life -- the Internet -- simply because they are accused of copyright infringement, an area of law that is notoriously full of uncertainties. Given that inauspicious start, it's no surprise that over the years, the three strikes system has failed everywhere, with some of the early adopters either dropping it, or putting it on hold. No wonder, then, that a latecomer, Australia, is also having problems with implementing the approach, as this report from c|net makes clear:
A three strikes scheme to track down individual pirates and send them warning letters about their downloading habits has been all but quashed, after rights holders and ISPs decided that manually targeting and contacting downloaders would be too costly.
However, as in the US, where the "six strikes" scheme is also flailing, the Australian copyright industry has no intention of seizing this opportunity to move on from this punitive approach. Instead, it wants to make it worse by automating the process. Village Roadshow Co-CEO Graham Burke, who Techdirt wrote about back in 2014, is quoted as saying:
"When automation occurs, instead of costing AU$16 or AU$20 a notice [about US$12 or US$15], which is just prohibitive, it will cost cents per notice," he said. "In other words, the ISPs will have an automated system that can be done simply, as opposed to at the moment it's manual."
Of course, an automated system is likely to be plagued by false positives even more than one operated by humans. The much lower cost involved -- cents rather than dollars per letter -- means that there will be no economic incentive to check for these in order to keep the numbers down, which are likely to balloon as a result. In other words, it seems clear that the three strikes system in Australia is about to get much worse -- and it was bad to begin with.
But there is one piece of positive news to emerge from this story. The Australian copyright industry says that it is not worth pursuing alleged copyright infringement cases unless the three strikes system costs almost nothing to use. Clearly, then, the real scale of the losses caused by online piracy is nowhere near as great as companies love to claim, otherwise basic economics would push them to use even a manual system. That's yet another reason to get rid of the flawed and disproportionate graduated response.
Techdirt has been writing about the question of what constitutes personal information in an online context for over half a decade. A recent decision in Australia, reported by the Guardian, suggests that the matter is far from settled around the world. The case concerns a journalist, Ben Grubb, who has been trying to get his personal data from the mobile phone company he uses, Telstra. Initially, the Australian privacy commissioner ruled that Telstra had failed to comply with local privacy laws when it refused to hand over the data, but that decision was overturned on appeal by an administrative appeals tribunal (AAT) on the following grounds:
In the AAT decision deputy president Stephanie Forgie took a narrow approach to defining personal information. She said that information such as IP and URL data were too remote to be considered personal information.
"That data is no longer about Mr Grubb or the fact that he made a call or sent a message or about the number or address to which he sent it. It is not about the content of the call or the message. The data is all about the way in which Telstra delivers the call or the message. That is not about Mr Grubb," she wrote.
That ignores just how much information even a single URL reveals about the visitor to the site and page in question. Moreover, putting all those URLs together can create an extremely detailed picture of the person concerned -- from things like their general character and beliefs to current concerns. It's an extension of the incorrect argument trotted out by governments that gathering and storing metadata isn't as intrusive as retaining content, when exactly the opposite is true. Since metadata is pre-sorted into handy conceptual categories, analysing and aggregating the information is extremely easy, even on a huge scale -- just ask the NSA and GCHQ.
However, the Australian privacy commissioner is not taking things lying down:
The privacy commissioner, Timothy Pilgrim, has launched a federal court challenge to a ruling that a journalist was not entitled to access parts of his personal mobile phone data.
The landmark challenge is believed to be the first time the Office of the Australian Information Commissioner has sought to appeal a case before the federal court.
As the Guardian rightly notes, the outcome of the case is likely to have important ramifications for future requests involving personal information under the country's privacy laws.
This past Friday, we published our response to an Australian lawyer, Stuart Gibson, who apparently works for a real law firm called Mills Oakley. I know that Gibson is a real lawyer, because he's represented big famous clients in the press before, including this impressive TV appearance in which he is left "categorically denying" statements that his client appears to have made directly and then having to defend himself when the news anchor points out what his client has actually said. Anyway, Mr. Gibson did not appear to appreciate my blog post on Friday, and sent a series of short emails over the weekend, with increasing fervor, in which he insisted that I "get proper legal advice instead of publishing your utter dribble," that my "legal theories" were "nonsensical" and finally demanded to know if I had "the guts" to face him in court.
I, as you know, am not a lawyer -- either in the US or Australia -- and honestly had no idea that one was supposed to make legal decisions based on whether or not one had "the guts." I had always assumed that this was the kind of thing that you need for bar brawls, rather than legal fights. But perhaps things are different down under. Either way, I did get "proper legal advice" (as I had before publishing my original post, but we'll leave that aside), and given Gibson's increasing email threats, our lawyer, the wonderful and well-regarded Paul Alan Levy from Public Citizen Litigation Group, has now responded to Gibson on our behalf. You can read it by following the link or embedded below.
In the meantime, others in the legal blogging world have begun to weigh in on Gibson's threat, including lawyer Scott Greenfield, who dubbed it Stuart Gibson's Really Bad Idea, and lawyer Ken White who noted that Milorad Trkulja is "not a gangster" but "Stuart Gibson Is, I Suppose, A Lawyer." I would recommend reading both posts, for further legal analysis of Mr. Gibson's threats (and make sure you stick around for his email exchange with Ken White). One wonders if this is the kind of publicity that Mills Oakley likes its lawyers to get.
Update: Stuart Gibson has replied to Paul's letter simply stating: "I wouldn't even be bothered to open this Spam." Apparently, Gibson thinks that detailed responses that actually include citations (unlike his own threat letters) from some of the most respected litigators around are "Spam." And the reputation of Mills Oakley continues to spiral down the drain...
Update, the second: Levy responded to Gibson by inserting the full text of the letter in the body of an email so that Gibson would not have to "open" the PDF he originally sent, and Gibson responded "Don't bother pal." Less than a minute later, he sent another email to Levy, saying just "Dribble." At this point I'm confused about Gibson and Mills Oakley and how they operate. Gibson himself had specifically requested that I seek out legal advice in responding to his letter. I have done so. And now he refuses to even read it? This is the professionalism that Mills Oakley and its lawyers demonstrate?
So... you may recall that, back in December, we received and responded to a ridiculous and bogus legal threat sent by one Milorad "Michael" Trkulja from Australia. Mr. Trkulja had sent the almost incomprehensible letter to us and to Google, making a bunch of claims, many of which made absolutely no sense at all. The crux of the issue, however, was that, back in November of 2012, we had an article about a legal victory by Mr. Trkulja against Google. The issue was that when you searched on things like "sydney underworld criminal mafia" in Google's Image search, sometimes a picture of Trkulja would show up. His argument was that this was Google defaming him, because its algorithms included him in the results of such a search and he was not, in fact, a part of the "underworld criminal mafia."
Either way, back in 2012 we wrote about that case, and Trkulja was upset that a comment on that story jokingly referred to him as a "gangster." Because of that, Trkulja demanded that we pay him lots of money, that we delete the story and the comments and that Google delist all of Techdirt entirely. Immediately, we pointed out in our response: the comment is not defamatory, the statute of limitations had long since passed if it was defamatory, as an American company we're protected by Section 230 of the CDA, and even if he took us to court in Australia, we're still protected by the SPEECH Act. Finally, we suggested that perhaps he chill out and not care so much about what an anonymous person said in the comments of an internet blog over three years ago -- especially when many people consider it a compliment to be called "a gangster."
Either way, it seemed fairly clear that there was no actual "harm" to Mr. Trkulja, given that he didn't even seem to care about it for over three years.
We had hoped that this would be the end of it, but apparently it is not. A few weeks back, we received the following, absolutely bogus legal threat from an Australian lawyer by the name of Stuart Gibson, who appears to work for an actual law firm called Mills Oakley. The original threat from Mr. Trkulja could, perhaps, be forgiven, seeing as he almost certainly wrote it himself (again, it was incomprehensible in parts, and full of grammatical and typographical errors). Our response was an attempt to educate Mr. Trkulja against making bogus threats.
However, now that he's apparently wasting money on a real lawyer like Gibson, we will address the rest of our response to Gibson: Your letter is ridiculous, censorious and not even remotely applicable. Going to court over this will make you and your client look extremely foolish. But let's dig in, because Mr. Gibson seems to think that blustery bullshit will scare us off. He's woefully misinformed on this.
First off, if you send a legal threat and say "NOT FOR PUBLICATION" at the top, it's tough to take you seriously, because such a statement is meaningless. We have no contractual agreement not to publish such information, and if you send us a bogus legal threat, we are damn well going to publish it:
And now on to the crux of Gibson's argument: we said mean things about his client and somebody's feelings may have been hurt.
If you can't read that, it says:
The matter that you have published conveys false and defamatory meanings including (but not limited to) the following:
Our client is a gangster;
That our client by virtue of his legal claims is incompetent and unfit to be a litigant;
That our client by virtue of his legal claims is a ridiculous litigant;
That our client is a criminal and a participant in organised crime;
That our client is unfit to be a litigant
None of these meanings is defensible. Our client is not a criminal and has never been a gangster nor associated with such persons. Accordingly there is no factual basis for the imputations published.
Let's go through these one by one. First off, we never said that Mr. Trkulja is a gangster. In fact, in both of our previous stories about him, we noted that his concern was over being called a gangster when he was not one. To claim otherwise is Mr. Gibson lying in his threat to us. As a suggestion, lying in your legal threat letter is not a very good idea.
Second, at no point did we state that Mr. Trkulja was incompetent or unfit to be a litigant. We merely published his own words -- admittedly including his misspellings, grammatical errors and general confusion -- and our responses to them. If Mr. Gibson thinks this implies that his client is unfit to be a litigant, perhaps he should check his own biases.
Third, again, Mr. Gibson seems to be assuming the claim. We did say that the threat against us was ridiculous -- an opinion we stand by. But we did not say he was a "ridiculous litigant." Also, "ridiculous" is a statement of opinion and even in nutty Australia, "honest opinion" is not defamation. And it is our "honest opinion" that the threat is ridiculous.
Fourth, this is a repeat of the first claim. It was false the first time, and it's still false. Repeating a false claim may allow Mr. Gibson to add to his billable hours, but doesn't seem like particularly good lawyering.
Fifth, this is a repeat of the second claim. See point four above. And point two above.
So let's be clear: we did not say that Mr. Trkulja was a gangster. We said, in our honest opinion, that he won a lawsuit the results of which we disagree with, and that his legal threat to us was ridiculous. This is all perfectly reasonable and protected free speech. Second, we posted Mr. Trkulja's own words which, again in our honest opinions, do show the "ridiculousness" of his threat to us in that it was filled with grammar and spelling errors and was, at points, (again, in our honest opinion) incomprehensible gibberish.
Mr. Gibson, then suggests that arrogance is somehow defamatory:
If you can't see that, it says:
Moreover your commentary that still resides on your website is an arrogant, false and poorly researched piece for the following reasons:
The reference to "gangster" is not "totally innocuous". The reference is grossly defamatory and indefensible. One could not conceive a more defamatory reference than that. It may be a throwaway line in the United States but it is certainly not in this jurisdiction.
Judgments against US companies especially those resident in California are enforceable particularly monetary judgments.
You are not protected by the Speech Act.
This firm has enforced numerous judgments against corporations in your jurisdiction.
Your reference to "free speech" is absolute nonsense. Speech may be free but it is also actionable.
You did publish the comment. Under Australian defamation law, you have a duty as a moderator to moderate third party comments. If you do not and refuse to take action when given notice, you are liable.
First off, I may not be an expert on Australian defamation law, but I can tell you I find it difficult to believe that "arrogance" or "poorly researched" information is defamatory there. It certainly is not defamatory in the US, and, furthermore, Mr. Gibson, you are wrong that it was poorly researched. It was well researched and backed up with a great amount of detail -- details I will note your own threat letter to us appears to be lacking. And I'm sorry if we come off as arrogant to you, but we're allowed to speak our minds.
Next, Mr. Gibson, you "could not conceive a more defamatory reference" than calling someone a gangster? Really, now? Because I'm at least moderately familiar with some Australian insults and many of them seem way, way worse than "gangster" -- which, again I will remind, you we never called your client (and, in fact, correctly noted that he was upset at someone calling him a gangster). And, yes, it is innocuous. No one cares that someone anonymously in a blog comment jokingly called your client a gangster. It was harmless as is fairly clearly evidenced by the fact that your client didn't even notice it for over three years.
Next, I'll note that for all your talk of enforcing Australian monetary judgments in California, you don't name a single one. And, you're wrong, because the SPEECH Act absolutely does apply, and you'd be exceptionally foolish to test this, though of course that is your decision to make. The text of the SPEECH Act is pretty explicit, first about when defamation rulings are enforceable in the US and (clue time!) it doesn't count if the statements wouldn't be defamatory in the US:
a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that the exercise of personal jurisdiction by the foreign court comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States.
Second, the law is also explicit that a service provider, such as us (in reference to comments published by readers on our site), if protected by CDA 230 in the US, would be similarly protected from foreign judgment:
a domestic court shall not recognize or enforce a foreign judgment for defamation against the provider of an interactive computer service, as defined in section 230 of the Communications Act of 1934 (47 U.S.C. 230) unless the domestic court determines that the judgment would be consistent with section 230 if the information that is the subject of such judgment had been provided in the United States.
I recognize that you're an Australian lawyer, not a US one, but I would suggest doing at least a tiny bit of research into the caselaw on Section 230 in the US. You will quickly learn that we do qualify as a service provider and that, no, we are not liable for statements in the comments. And, hell, even if we were, and even if the comments were defamatory under US law (which they're not), the statute of limitations on those original comments is long past anyway.
And, yes, in case you still have not read the SPEECH Act, the legal burden will be on you here:
The party seeking recognition or enforcement of the foreign judgment shall bear the burden of establishing that the judgment is consistent with section 230.
Good luck with that.
In case you still decide to ignore the actual text of the law, you can also go digging through the legislative record on the SPEECH Act, in which it was made explicit that the law was designed to protect against such forms of "libel tourism."
The purpose of this provision is to ensure that libel tourists do not attempt to chill speech by suing a third-party interactive computer service, rather than the actual author of the offending statement.
You can claim the law doesn't apply, but you are wrong. The text is clear. You can claim that you have won judgments or monetary awards in the past. And perhaps you have, but if you try to move against us, you will be facing the SPEECH Act and you will lose.
So, given all of the above, we will not be undertaking any of your demands. We will not apologize as we have nothing to apologize for. We will not retract anything, as we did not make any false or defamatory publications. We will not remove anything from our website. We will not pay your client anything, whether "reasonable costs" nor "a sum of money in lieu of damages."
Instead, we will tell you, as we did originally, to go pound sand and to maybe think twice before making bogus legal threats that you cannot back up.