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On October 18, 1992, the Gulzhou Higher People's Court sentenced Luo Deming to death; he had produced and sold 40,000 bottles of counterfeit Maotai wine at a profit of approximately RMB 260,000. On April 29, 1993, the Kunming Intermediate People's Court sentenced one defendant to death and six others to life imprisonment, they had sold counterfeit 'Red Pagoda Mountain' cigarettes for an illegal profit of approximately RMB 150,000. It may be commented that the cases show that China's government through its judicial system has steadily increased its umbrella of control over counterfeiting.

The ACCC is seeking... declarations that Google contravened section 52 of the Act

A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

The piece of law that they are sueing under is a thing called the Trade Practices Act 1974. Section 52 is a very broad section of that act that prohibits Misleading and Deceptive conduct.

If you read the press release on the ACCC website , they are also sueing the Trading Post, which traditionally was a paper you could buy advertising items for sale. As a guess, they are looking to clean up the online advertising business to discourage behaviour that would lead to people being mislead into buying from the wrong company.

Just a bit of background for the American readers. The Australian Competition and Consumer Commission is part of the Australian Federal Government. They normally deal with cases of large scale misbehaviour by companies (the smaller disputes between an individual and a company normally fall to the state fair trading body). Their resposibility is to ensure that the companies are providing their products to the customers in a reasonable way. Areas they look at include, price collusion, third line forcing, misleading and deceptive advertising (includes descriptions, prices and availability), anti-competitive behaviour, product saftety, etc.

Their normal preference is to obtain a court enforceable undertaking from the company in question, that will often include, changes in behaviour, corrective advertising and recompense to the customers affected. A good example of this is the case against Repco . In that case the results was that Repco agreed to a court enforcable undertaking to:

1. Advertise to admit they did not have enough stock for the sale in question
2. Recompense the people that complained with like goods or a gift voucher
3. Undertake a monitored program to ensure they complied with the Trade Practices act.

Note there was no financial benefit from this to the ACCC, the only recpompense went to the customers affected.

In some cases, the ACCC will take an organisation all the way through the system, and ask that the result be a fine, like in the case of Safeway, where they sucessfully fined the company $8.9 Million for price fixing, and one of the staff received a fine of $50,000. From memory all of the fines are per offence, and have provisions against the employees/officers of a company to help discourage bad behaviour. As you can see to take that kind of action takes a long time (in the Safeway case, it was 10 years because it went all the way through the court system).

The piece of law that they are sueing under is a thing called the Trade Practices Act 1974. Section 52 is a very broad section of that act that prohibits Misleading and Deceptive conduct.

If you read the press release on the ACCC website , they are also sueing the Trading Post, which traditionally was a paper you could buy advertising items for sale. As a guess, they are looking to clean up the online advertising business to discourage behaviour that would lead to people being mislead into buying from the wrong company.

Just a bit of background for the American readers. The Australian Competition and Consumer Commission is part of the Australian Federal Government. They normally deal with cases of large scale misbehaviour by companies (the smaller disputes between an individual and a company normally fall to the state fair trading body). Their resposibility is to ensure that the companies are providing their products to the customers in a reasonable way. Areas they look at include, price collusion, third line forcing, misleading and deceptive advertising (includes descriptions, prices and availability), anti-competitive behaviour, product saftety, etc.

Their normal preference is to obtain a court enforceable undertaking from the company in question, that will often include, changes in behaviour, corrective advertising and recompense to the customers affected. A good example of this is the case against Repco . In that case the results was that Repco agreed to a court enforcable undertaking to:

1. Advertise to admit they did not have enough stock for the sale in question
2. Recompense the people that complained with like goods or a gift voucher
3. Undertake a monitored program to ensure they complied with the Trade Practices act.

Note there was no financial benefit from this to the ACCC, the only recpompense went to the customers affected.

In some cases, the ACCC will take an organisation all the way through the system, and ask that the result be a fine, like in the case of Safeway, where they sucessfully fined the company $8.9 Million for price fixing, and one of the staff received a fine of $50,000. From memory all of the fines are per offence, and have provisions against the employees/officers of a company to help discourage bad behaviour. As you can see to take that kind of action takes a long time (in the Safeway case, it was 10 years because it went all the way through the court system).

Here's the trial decision:

http://www.austlii.edu.au/au/cases/cth/federal_ct/ 2001/612.html

Here's the decision on appeal:

http://www.austlii.edu.au/au/cases/cth/FCAFC/2002/ 112.html

Here's the trial decision:

http://www.austlii.edu.au/au/cases/cth/federal_ct/ 2001/612.html

Here's the decision on appeal:

http://www.austlii.edu.au/au/cases/cth/FCAFC/2002/ 112.html

Well, its always pretty obvious which section of legislation or clause in a contract is the one causing the problem.

When you think about it, the Court is like a debugging tool for legislation, contracts and other legal documents. Its certainly where things get sent when they crash, fail or appear to produce a weird or ambiguous result. If you read cases that involve serious construction issues (ie working out the meaning of contracts or legislation) then you will see some classic hand-debugging/testing techniques at play.

Legislation also has some pretty sophisticated built in version and dependency tracking stuff as well. I give as the first example I could think of the historic notes for the Crimes Act 1900 (NSW), which is not that dissimilar to what you'd find at the top of any well maintained program.

Believe me, this is vitally important information to any lawyer, as we need to know what the law said when the event in question happened, not what it says now.

I'm guessing he violated an article of the Australian 1968 copyright act - http://www.austlii.edu.au/au/legis/cth/consol_act/ ca1968133/

It's a crime in his country, and Australia has an extradition treaty with the US. No news here!

Apparantly they got complaints when people would egosurf and find their names from former court cases...

It's a little more nuanced than that ...

Take the spent convictions legislation in NSW. It's a criminal offence to inquire about someone's offences dating back more than 20 years (subject to certain exceptions of course). The cases we (AustLII) carry, are those from courts of record (ie Supreme/High Court) which have precedential value. They are meant to be used to establish what the law is, not to spy on individuals, who ought to have some right to privacy (especially in regard to "youthful indiscretions." We've had background checkers leaving feedback about various issues (clearly a misuse of our service), so if you're applying for a job keep your fingers crossed that you don't have the same (or similar) name to someone who has recently appealed a conviction!

One of the principles operating in Common Law jurisdictions is the fact that procedings of courts is (by default) open to public view. see Russell v Russell 134 CLR 495. The reason procedings are open, is not to add some form of condemnation to the individual parties involved in them, but to guarantee that the operation of the courts remains fair and free from corruption. Nor, in an age when only lawyers and law students with access to law reports, did the individuals involved have much to fear in the longer term (ie they would eventually be able to put their trials behind them p.i.).

That is to say in practice there was a difference in the information being "publically available" and actually being out there in the public for all to see. The more categorical advocates of open information (clearly we are advocates of open information!) are blind to this practical distinction and the very real threats the dissolution of it pose to individual people. A well-known search engine, for instance, at one time refused to respect our robots.txt files ("open information is open information"), so we had to block access to them. Thus the top-ranked result for AustLII was a connection refused page! I'm glad to say this has now been resolved.

How this will pan out remains to be seen. It may even be necessary, as I've heard a senior judge tout, to abandon openess at least in criminal matters. That would be a shame (and it would require the HC to overturn Russell).

Gee, or you can grab them off the web for free:

AustLii

Still isn't complete, but they're adding past cases to it very regularly.

I suspect that this is true in the rest of the western world, but legal systems were hardly ever going to be the first to embrace technology.

Note they're robots.txt (this is just the most important snippet):

# 14 August 2003 - unrestricted access to everything except cases
User-agent: *
Disallow: /au/cases/
Disallow: /au/other/HCATrans
Disallow: /au/other/hca/
Disallow: /nz/cases/
Disallow: /cgi-bin/
Disallow: /do/
Disallow: /do2/
Disallow: /form/
Disallow: /forms/
Disallow: /fcgi-bin/
Disallow: /rsjlibrary/rciadic

Apparantly they got complaints when people would egosurf and find their names from former court cases... (or their employer would etc etc) So they've "fixed" it.

Ok, ok, so its coverage of lots of local courts leaves a lot of holes, but its getting there. I think that the system, rather than any conspiracy, is more likely however. The idea that our government gets copyright in things it produces isn't inherently evil.

Projects like google's here though sound great. If they're sharing the data then all should be above board. It will most likely have the effect of forcing governments to collect LESS about us, as we'll all be so much more aware of what is out there.

--Q

In Australia, there's no enshrined free speech

That is not entirely true. It is true that there is no explicit protection in the Constitution, the High Court, in a series of cases beginning with the Capital TV case, discovered an implied right to "political communication" within its structure. It would seem to me that statements which are merely in support of terrorist organisations are properly thought of as political communication. On the other hand statements which go further and advocate violence or indulge in unlawful racial vilification will clearly not attract the protection of this implied right.

... government-owned television and radio

Owned yes, but not run. As you point out the government owned media is consistently attacked for having an anti-government bias, which when you think about it, should be the source of a great deal of comfort for Australians. However, the government still holds the purse strings, makes appointments to the boards etc and they are actively working to stiffle criticism. Just because convention has in the past restrained the government from interference, does not mean it will continue to do so indefinitely. In fact the signs are not good. And I disagree the the People (at least those who change their vote) will give a rat's arse about what happens to the ABC or SBS.

no separation of church and state

Again not entirely true. You are correct in terms of state powers, but freedom of religion (and the restriction from imposing religious qualification on Commonwealth employ) is one of the few rights the Constitution does explicitly grant (see Section 116) and using language which will seem familiar to American readers.

you have to remember that in Australia there are still checks and balances in place

Such as ... ?

Australians being extra-skeptical about people in charge.

Well you have to be, after all, they're all politicians!

In Australia, there's no enshrined free speech

That is not entirely true. It is true that there is no explicit protection in the Constitution, the High Court, in a series of cases beginning with the Capital TV case, discovered an implied right to "political communication" within its structure. It would seem to me that statements which are merely in support of terrorist organisations are properly thought of as political communication. On the other hand statements which go further and advocate violence or indulge in unlawful racial vilification will clearly not attract the protection of this implied right.

... government-owned television and radio

Owned yes, but not run. As you point out the government owned media is consistently attacked for having an anti-government bias, which when you think about it, should be the source of a great deal of comfort for Australians. However, the government still holds the purse strings, makes appointments to the boards etc and they are actively working to stiffle criticism. Just because convention has in the past restrained the government from interference, does not mean it will continue to do so indefinitely. In fact the signs are not good. And I disagree the the People (at least those who change their vote) will give a rat's arse about what happens to the ABC or SBS.

no separation of church and state

Again not entirely true. You are correct in terms of state powers, but freedom of religion (and the restriction from imposing religious qualification on Commonwealth employ) is one of the few rights the Constitution does explicitly grant (see Section 116) and using language which will seem familiar to American readers.

you have to remember that in Australia there are still checks and balances in place

Such as ... ?

Australians being extra-skeptical about people in charge.

Well you have to be, after all, they're all politicians!

In Australia, there's no enshrined free speech

That is not entirely true. It is true that there is no explicit protection in the Constitution, the High Court, in a series of cases beginning with the Capital TV case, discovered an implied right to "political communication" within its structure. It would seem to me that statements which are merely in support of terrorist organisations are properly thought of as political communication. On the other hand statements which go further and advocate violence or indulge in unlawful racial vilification will clearly not attract the protection of this implied right.

... government-owned television and radio

Owned yes, but not run. As you point out the government owned media is consistently attacked for having an anti-government bias, which when you think about it, should be the source of a great deal of comfort for Australians. However, the government still holds the purse strings, makes appointments to the boards etc and they are actively working to stiffle criticism. Just because convention has in the past restrained the government from interference, does not mean it will continue to do so indefinitely. In fact the signs are not good. And I disagree the the People (at least those who change their vote) will give a rat's arse about what happens to the ABC or SBS.

no separation of church and state

Again not entirely true. You are correct in terms of state powers, but freedom of religion (and the restriction from imposing religious qualification on Commonwealth employ) is one of the few rights the Constitution does explicitly grant (see Section 116) and using language which will seem familiar to American readers.

you have to remember that in Australia there are still checks and balances in place

Such as ... ?

Australians being extra-skeptical about people in charge.

Well you have to be, after all, they're all politicians!

I reckon you could be charged with affray.
http://www.austlii.edu.au/au/legis/nsw/consol_act/ ca190082/s93c.html

We did.

As per the post here : http://melbourne.indymedia.org/news/2007/02/141093 .php

it was replaced with :

  "You might not know this, but mining is having devastating impacts on communities and the environment. Most mining in NSW is for coal. This is fuelling global climate change, which is critically endangering life on our planet. The NSW Minerals Council is now running a spin campaign to fool you into thinking that we need the coal mining industry. We invite you to dig a little deeper and find out the real facts."

Unfortunately this website has been forced to be taken down by the Axxs.org Collective due to Freehills lawyers for NSW Minerals Council using this piece of legislation :

http://www.austlii.edu.au/au/legis/cth/consol_reg/ cr1969242/s20j.html

which effectively Axxs.org Collective has to comply too, regardless of the legitimacy of the claim of copyright infringement.

The site was a fair use critical review parody site of the NSW Mining propaganda campaign, and brought you facts regarding what was wrong with it.

The statements by the solicitors for the NSW Minerals Council does not explicitly state what exactly is copyright :

"Content in which our client owns copyright may be viewed on it's website, http://www.nswmining.com.au./ We ask that you compare our client's website to the offending websites referred to above. On comparison, you will see the copyright infringement issues that our client has with the abovementioned websites."

As the intended recipient of the email, we disclose this information, so that others can see how from our point of view, critical review is being attacked using this piece of legislation.

When asking what exactly was copyright on the phone by one of the collective members, so that we may take it down promptly, and fulfill our obligations, we were told, 'All of it', everything. It was pointed out the source code was totally different, and was told it was copyright to their client, even though elements of the pages, on the site itself, where pointed out as to who the images etc belonged too. This is a very interesting claim, that custom php code by one of our users, images by other parties, the colours, the lot, is the intellectual property of NSW Minerals Council. We have been forced to take the site down by this legislation, as the solicitors pointed out that according to it, we must act appropriately on reciept of such an email, or have failed to fulfill our legal responsibilities. Hence we have done so.

You do the math.

http://www.austlii.edu.au/au/legis/cth/consol_reg/ cr1969242/s20j.html

what's more IAAAL

Yes, but are you AAIPL? ;)

It's a shame that they don't fight this. The courts in Australia are generally reasonably sympathetic to the victims of unmeritorious litigation, and wouldn't hesitate to give summary judgment and a significant costs order if it came down to it. The mining industry's lawyers would be well aware of this and would probably settle the thing out of court.

From the SMH article it appears that they are fighting back. They have issued a counter-notice under the regs and are basically telling the industry group to bring it on. Or is your advice that they proceed more agressively under section 202?

Actually, your very wrong.

We didn't roll over and die on this, we tried arguing it, but the lawyers said 'It doesn't matter if we are wrong or right, you have to abide by this law :

http://www.austlii.edu.au/au/legis/cth/consol_reg/ cr1969242/sch10.html

Which REQUIRES, that we pull the site, IRRESPECTIVE of ANYTHING. We just have to get a notice as per the regulations. I asked the solicitor exactly what was copyright, and she said ALL OF IT. as per the notice to us. This is just plain false. I pointed out the source code was different, she then pulled the statement about the above law.

Now, I don't know if you know, but the Mining companies in just NSW are a 21 billion dollar business. That's a lot of money to have hanging over a collective that does web-hosting voluntarily. These lawyers were ready to make sure we paid for not fullfilling our legal requirements. We tried fighting this, and came up against a money wall. a 21 billion dollar money wall.

And for those that think this can't happen in the US, your very wrong. We have the Australian-US Free Trade Agreement to thank for section 20j (the takedown clause):
http://www.austlii.edu.au/au/legis/cth/num_reg/car 200412004n405376/sch1.html

notice this:

COPYRIGHT AMENDMENT REGULATIONS 2004 (No. 1) 2004 No. 405 - REG 2
Commencement

These Regulations commence on the commencement of item 191 of Schedule 9
to the US Free Trade Agreement Implementation Act 2004 .
http://www.austlii.edu.au/au/legis/cth/num_reg/car 200412004n405376/s2.html

Actually, your very wrong.

We didn't roll over and die on this, we tried arguing it, but the lawyers said 'It doesn't matter if we are wrong or right, you have to abide by this law :

http://www.austlii.edu.au/au/legis/cth/consol_reg/ cr1969242/sch10.html

Which REQUIRES, that we pull the site, IRRESPECTIVE of ANYTHING. We just have to get a notice as per the regulations. I asked the solicitor exactly what was copyright, and she said ALL OF IT. as per the notice to us. This is just plain false. I pointed out the source code was different, she then pulled the statement about the above law.

Now, I don't know if you know, but the Mining companies in just NSW are a 21 billion dollar business. That's a lot of money to have hanging over a collective that does web-hosting voluntarily. These lawyers were ready to make sure we paid for not fullfilling our legal requirements. We tried fighting this, and came up against a money wall. a 21 billion dollar money wall.

And for those that think this can't happen in the US, your very wrong. We have the Australian-US Free Trade Agreement to thank for section 20j (the takedown clause):
http://www.austlii.edu.au/au/legis/cth/num_reg/car 200412004n405376/sch1.html

notice this:

COPYRIGHT AMENDMENT REGULATIONS 2004 (No. 1) 2004 No. 405 - REG 2
Commencement

These Regulations commence on the commencement of item 191 of Schedule 9
to the US Free Trade Agreement Implementation Act 2004 .
http://www.austlii.edu.au/au/legis/cth/num_reg/car 200412004n405376/s2.html

Actually, your very wrong.

We didn't roll over and die on this, we tried arguing it, but the lawyers said 'It doesn't matter if we are wrong or right, you have to abide by this law :

http://www.austlii.edu.au/au/legis/cth/consol_reg/ cr1969242/sch10.html

Which REQUIRES, that we pull the site, IRRESPECTIVE of ANYTHING. We just have to get a notice as per the regulations. I asked the solicitor exactly what was copyright, and she said ALL OF IT. as per the notice to us. This is just plain false. I pointed out the source code was different, she then pulled the statement about the above law.

Now, I don't know if you know, but the Mining companies in just NSW are a 21 billion dollar business. That's a lot of money to have hanging over a collective that does web-hosting voluntarily. These lawyers were ready to make sure we paid for not fullfilling our legal requirements. We tried fighting this, and came up against a money wall. a 21 billion dollar money wall.

And for those that think this can't happen in the US, your very wrong. We have the Australian-US Free Trade Agreement to thank for section 20j (the takedown clause):
http://www.austlii.edu.au/au/legis/cth/num_reg/car 200412004n405376/sch1.html

notice this:

COPYRIGHT AMENDMENT REGULATIONS 2004 (No. 1) 2004 No. 405 - REG 2
Commencement

These Regulations commence on the commencement of item 191 of Schedule 9
to the US Free Trade Agreement Implementation Act 2004 .
http://www.austlii.edu.au/au/legis/cth/num_reg/car 200412004n405376/s2.html

In Judge Branson's judgment he states: "When an internet user clicked on a particular hyperlink, the music file in question was transmitted directly to his or her computer from a remote server." And there's the rub. To illustrate, even if Sony music makes available free MP3's (that it has copyright permission to) to be downloaded from its website as a traffic and brand building exercise this does not confer permission to others to bypass Sony's website by linking to the mp3's directly i.e. acting as a direct distribution mechanism.

I imagine if instead the defendant had simply linked to the copyright holder's websites where the MP3 could therein be downloaded there wouldn't have been any case to answer.

For me, the primary aspects of this case had lose/lose written all over it.

IANAL.

Read the judgment. He wasn't linking to just pages, he was linking directly to the MP3's themselves. Using your analogy, it's like putting a special button embedded in the book that will magically create a "copy" of that reference on your desk for you.

... not to mention that in the same week that he finally admits GW might be occuring he tosses A$60mill to GW research and $A90mill (of federal funding and despite s116 of our Constitution) to employing chaplains at state schools! And this in addition to the billions of $$$ he's already tossed at the private school sector which has had the effect of causing ID teaching fundie schools to sprout up like mushrooms all over the countryside ...

Well at least when we all die from lack of water we'll know how to pray!

And claimed that he is the best PM we've ever had because interest rates are low and we are in budget surplus

And those low interest rates (and other middle-class welfare subsidies to home buyers) are the reason he gets returned time after time ...

The original court decision was handed down last April; this is the punishment. Additionally, when the case went to court in 2005, the courts handed Clarity1 an an injunction against sending more spam. So it sounds like Mansfield first violated the law, then violated a court injunction.

I wonder if he can pay the fine in e-mail promotion services?

Has a case against region locking ever reached a court in any country?

If you want info on Australian Laws go here http://austlii.edu.au./

Doh! Nearly forgot.

For those who want to look, find ABC v Lenah Game Meats here;
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases /cth/high_ct/2001/63.html?query=%5E+lenah

It's a fascinating, if gruesome, little story about people who kill possums.

You may also compare with High Court in Victoria Park Racing v Taylor - there are no
property rights in a 'spectacle' - http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases /cth/HCA/1937/45.html?query=victoria+park+and+tayl or :)

Doh! Nearly forgot.

For those who want to look, find ABC v Lenah Game Meats here;
http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases /cth/high_ct/2001/63.html?query=%5E+lenah

It's a fascinating, if gruesome, little story about people who kill possums.

You may also compare with High Court in Victoria Park Racing v Taylor - there are no
property rights in a 'spectacle' - http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases /cth/HCA/1937/45.html?query=victoria+park+and+tayl or :)

It is not illegal in most cases to place arbitrary restrictions on supply (exceptions being public services, utilities and such).

Contracts, arrangements or understandings that restrict dealings or affect competition and Bait advertising are illegal in Australia.

It is not illegal in most cases to place arbitrary restrictions on supply (exceptions being public services, utilities and such).

Contracts, arrangements or understandings that restrict dealings or affect competition and Bait advertising are illegal in Australia.

The theory is that Parliament just sets a penalty for each statutory contravention in Penalty Units according to its perceived seriousness, and can update them all automatically eg to account for inflation by amending a single section of a single piece of legislation (the Crimes Act) rather than every section imposing a penalty (which would be a nightmare). It's quite elegant for the legal profession.

It's likely that there will be a maximum penalty of 2000 Penalty Units for the contravention, which today = $220k, and in future may rise.

What's interesting is that some Acts I have dealt impose penalties in the range of 1 to 30 Penalty Units, so this is quite a big fine, relatively speaking. disclaimer - i'm a lawyer but i'm not your lawyer and this is not legal advice. don't rely on it!

Australia has no "Fair Use Policy" laws

Howabout Div 3 of Part III of the Copyright Act 1968 (Cth)? - scroll down to the appropriate point on this page http://scaleplus.law.gov.au/html/pasteact/0/244/to p.htm and have a read as to what is permitted as "fair dealing" under Australian law.

so far there has been no test case

This is just wrong. There have been cases about fair dealing and so forth since the Act was encated. Try this link http://www.austlii.edu.au/cgi-bin/sinocgi.cgi/au?m ethod=boolean&rank=on&query=ca1968133%20s40 if you're really interested.

This is the reason TiVO has not been introduced to Australia.

I would suggest that there are several reasons TiVO has not been introduced, such as:

- only 5 free to air channels
- no free cable, encrypted pay TV
- no electronic program guide
- TV stations who persist on not running to time
- different video standard (PAL not NTSC)

It's certainly not the law - which hasn't prevented VCRs from flourishing (albeit they reisde in a somewhat grey area) - but more likely a question of economics.

It is illegal to record any TV show that is not being broadcast live to air

In fact its UNLAWFUL (but not illegal) to record a TV show at all (except in the case of fair dealing, and other exceptions I wont go into now) whether broadcast or not.

But the distiction between unlawful and illegal is an important one. Unlawful means that the TV station or distributor or somebody has to come sue you for infringing upon their copyright. No jail time. Illegal means that somethings is a crime - the copyright holder just has to notify the cops, they can pick you up and you might face jail time (although now is not the time to go into criminal sentencing procedure).

It is also illegal to rip cds to MP3

Again, it's unlawful, but not illegal.

Apple have finally taken the chance, which is good to see.

I would suggest that this is not, in fact, a chance or risk for Apple. Australians are high per-capita purchasers of music. It is guaranteed profit which will also drive the iPod market with a legal source of downloads. Apple has only "waited" so long because the record labels in Australia have been absolute asses to deal with. Sony BMG is still not on board.

Hopefully none of the recording labels will launch a lawsuit

This is the bit that gets me most... it is the labels WHO ARE COOPERATING WITH APPLE TO ALLOW APPLE TO SELL THEIR MUSIC. The labels would be, in effect, SUING THEMSELVES. This will not happen.

Until now, an iPod was an expensive paperweight unless you were prepared to infringe copyright, which meant that it was a copyright infringement tool, which meant that it had the same legal status as a X-Box or PS-2 mod chip.

Actually mod chips are legal as they allow legal use of games/DVDs purchased overseas (and to restrict trade like that is in violation of the Trade Practices Act). Recent High Court decision here. But you're right on the iPod copyright infringement.

You do not have the right to make copies of content for personal use or even backups.

There are limited rights to make backup copies in some cases.

It comes down to "apparent authority".

If the 3rd party would be considered by a reasonable person to have the authority, then their actions on your behalf will bind.

If they did something you didn't know about or didn't authorise that would not be considered reasonable, then they wear it.

Yes, there is a a grey area there - which is what judges are paid to work out. If you a really motivated to look, go to http://www.austlii.edu.au/ and search for "apparent authority".

Matt

I've also explained the Gutnick decision to several non-legal friends, and they all thought that it was reasonable to hold someone to account for damage caused in Australia, regardless of the physical origin of the damage.

pity I don't have any mod points today, to mod up your post. I was going to mention Gutnick - but u beat me to it !

Get the whole case here :
http://www.austlii.edu.au/au/cases/cth/HCA/2002/56 .html

"Kazzaa isn't the same though. While it got a large amount of its user base from digital pirates, they have had a section of their documentation set aside to explain that they don't endorse infringing copyrights with their software."

Most P2P software has this. It's meaningless.

The court records show that Sharman condoned, encouraged and profited from piracy. They even ran ad campaigns that made it clear that they knew what was going on, and that they wanted people to use their network for piracy.

"I hope the courts in AU will realize that allowing people to join a network that has digital pirates on it isn't the fault of the creator when it means that entire servers and ISPs should be shut down as a result."

Kazaa's wild success as a medium for piracy was most certainly as a result of Sharman's efforts. Sharman isn't a gathering "information wants to be free" hippies... they're a for-profit company, set up in the tax haven of Vanatu, for the singular purpose of making lots of money by tapping into the huge demand for pirated material. And they were a success -- they've made untold millions.

If you thought that their warnings to users not to engage in piracy were genuine or heartfelt, or would let them escape the law, you were mistaken.

"When push comes to shove, they may be able to come up with a legal definition to try to separate Kazaa from these."

Huh? This was all covered in the decision. Sharman tried the "we're just a carrier" defense and were laughed at.

"But most likely, this sucks, because the judge didn't realize quite the landmine he was stepping into."

Reading the decision shows that they went way beyond that. I think many people who've RTFA but who haven't RTFCD are under the impression that the ruling was made after 20 minutes; the reality is that the case stretched on for many, many months, and included the testimony of computer science professors from UC Berkeley and other institutions. The common Slashdot mentality of "everybody is naive and stupid besides me" doesn't apply here. Really, guys... read the decision if you want to understand the background.

"I'm not personally familiar with Australian law, I hope someone who is will be able to give us a bit of insight. But until then, I really can't understand how the judge made this ruling."

No worries -- the decision is online. It's some 350 paragraphs, but it's pretty well laid out and should answer all the questions you have: what they were being charged with, what evidence was collected, and why the judge ruled as he did.

"Kazaa is a data transfer protocol-a crappy one, granted, but that's all it is."

Nope: Kazaa is a product by Sharman Networks, who were shown to have a business that relied on inciting, encouraging, and profiting from widescale piracy. The decision (I have provided the link above) has all the smoking guns.

"Are the makers of FTP clients now liable if an FTP user downloads copyrighted material?"

No. I hope you can understand why.

"This is an awful decision. If we were to hold manufacturers responsible for what people did with their products, we wouldn't have guns, knives, VCRs, computers, cameras (kiddie porn!), or even pencils."

Settle down there, Chicken Little. My guess is that you're only going by the capsule news report and you haven't read the actual decision -- understandable, as it's some 160 pages, but the sad truth is that issues like these can't often be accurately conveyed in just a few words.

Take the time to read it and you'll understand why the court ruled the way they did: because Kazaa was shown to have deliberately built a business on inciting, promoting and allowing widespread piracy.

It's not always easy to determine that a company like Sharman Networks needs to stop doing what it's doing, while (to use your example) a pencil manufacter can continue doing business, but these things need to be done. As silly as it sounds, nailing the bad actors like Kazaa ultimately strengthens your right to use a camera or a pencil.

We don't even have the legal right to tape shows off tv.

Yeah we do -

COPYRIGHT ACT 1968 - SECT 111
The copyright in a television broadcast in so far as it consists of visual images is not infringed by the making of a cinematograph film of the broadcast, or a copy of such a film, for the private and domestic use of the person by whom it is made.

Same goes for the audio component.

http://www.austlii.edu.au/au/legis/cth/consol_act/ ca1968133/s111.html

Decision can be found here: http://www.austlii.edu.au/au/cases/cth/federal_ct/ 2005/1242.html

From another article here:

http://www.smh.com.au/news/technology/kazaa-ordere d-to-clamp-down-on-ripoffs/2005/09/05/112577245613 2.html

"Kazaa's owners would have to apply "maximum pressure" on existing users to upgrade their software to the new, filtered version."

I wonder how the court sees this as being implemented? and how they intend to measure that "maximum pressure" has been applied.

I dont know the architecture of Kazaa. Is it possible for Sharman to "force" a new version out? or could the old version continue to be used as always?

Also the full judgement can be found here:

http://www.austlii.edu.au/au/cases/cth/federal_ct/ 2005/1242.html

C|net:
http://news.com.com/Australian+court+rules+against +Kazaa/2100-1030_3-5849480.html

Full judgement:
http://www.austlii.edu.au/au/cases/cth/federal_ct/ 2005/1242.html
- reasonably plain english, and worth reading. No cause for outrage here folks.

groundless trademark claimants get sued by you!

http://www.austlii.edu.au/au/legis/cth/consol_act/ tma1995121/s129.html

"Groundless threats of legal proceedings
(1) If a person threatens to bring an action against another person ( threatened person ) on the ground that the threatened person has infringed:
(a) a registered trade mark; or
(b) a trade mark alleged by the person to be registered;
any person aggrieved by the threat ( plaintiff ) may bring an action (either in a prescribed court or in any other court having jurisdiction) against the person making the threat ( defendant ).
[...]
The plaintiff may also recover any damages that he or she has sustained because of the defendant's conduct."

We also have a kind of loser pays here; not in all cases, but I think where the judge determines that the loser shouldn't have brought the action in the first place, or has caused the winner unreasonable costs. It's not perfect, but it prevents the kind of systemic abuse of the system that you USians seem to be suffering. Your legislators seem to be caught up in a fantasy world where imagined infringements of sacrosanct constitutional rights are more important than demonstrated failures and injustices caused by the status quo. Good luck with that whole Democracy thing, anyway. I've heard it's the bomb.

I would suggest that the vast majority of people browsing the web (including Mr Barton here) have NO IDEA that their browser keeps a copy in a local cache.

Without this idea, there is no mens rea, no intention to retain possesion, and therefore not guilty.

eg, If he used an FTP program, I would think he is more culpable than a browser, as it's generally obvious with FTP that it's making a copy, heck even the name givies it away FTP - File Transfer protocol. A standard browser does not warn you, or make it obvious. Caching is default, unobvious behaviour.

As I know *do* how browsers cache, I would be more culpable than him, for exactly the same actions.

I also posted a commentary re Australian Property Law you may find intersting.
http://www.austlii.edu.au/au/cases/cth/federal_ct/ 1997/1331.html

geez - how many geek-lawyers reading /. these days - we need our own subgroup/section !

cheers,
darren

Under Australian Property Law he would be guilty. Two elements are required:
1. the intent or knowledge to control the item
2. the ability to control

In Flack
http://www.austlii.edu.au/au/cases/cth/federal_ct/ 1997/1331.html
the woman was held to have title to the $20,000 of confiscated drug money her son had hidden in her house, despite her lack of knowledge that it was there.

The NCA had raided the house, found the money, used it in evidence - but then she wanted it back ! , they refused, it went to Federal Court..

She claimed (and won) possessory title to EVERYTHING inside her house, including things that she didn't know where there.

Now, how different is your computer to your house ? Following Flack,this guy had even more knowledge of what may have been on his HDD than she did as he was actively surfing.

So, even if he was unaware that the files were on the computer, he probably can't deny that he has possession / legal title to them.

Now, the question becomes is it a strict liability offence ? If you have legal possesive title, you are guilty, regardless of your mental intent , or knowledge.

However, without seeing the relevant legislation , and reading he got 20 years, I would guess it's probably a mens rea offence, where your mental state/knowledge IS relevant.

So, guilty of possesion, but probably not guilty of the legislated offence.

Anyone point me to the legislation he was convicted under, and /or a transcript of the case ?

cheers.

"The exceptions sound rather broad"

They aren't, they're very clearly specified and quite limited. You have to read the act to realise that the summary is rather lacking.

Here's the 1968 copyright act:
http://www.austlii.edu.au/au/legis/cth/consol_act/ ca1968133/

And here's the 2000 Digital Agenda act (already in place, you might notice):
http://www.austlii.edu.au/au/legis/cth/consol_act/ caaa2000294/

Ordinarily I'd answer your question in greater detail, but...well, sorry, I can't be arsed, I'm going home for the day. Start at section 10.