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No, in fact the external affairs power within our constitution allows our government to make laws where it is required to do so by international treaty. So in signing this treaty, the feds give themselves power to implement it.

It's worth noting in relation to a s 52 claim that the rules on standing (i.e. who can sue) to obtain an injunction are very liberal. Section 80 of the TPA allows literally anyone, not just those having a direct interest affected by the infringing conduct, to apply for an order restraining the infringer from doing it again. Even if the ACCC doesn't take an interest, Linux just needs one well-resourced friend in Australia in order to stop this.

The way it works is that a person who receives a groundless threat can bring an action for a declaration that the threats are unjustified, and the burden of proof in that action is on the threatening party to show that the threat was justified--ie that "the acts in respect of which the action or proceeding was threatened constituted, or, if done, would constitute, an infringement of copyright".

However, you can't evaluate whether SCO could be in trouble under the section without knowing exactly what they said to the person who would bring the action under it. I'm not sure that the SMH article taken alone would be enough (or at least, I wouldn't rely on it, as it is sufficiently vague on whether legal action is threatened against a particular person).

Hence why I was wondering out loud if (being ignorant of this provision of Australian law, or just gung-ho) SCO might have tripped up over the section--I couldn't say for sure unless anyone can supply a copy of everything sent or said to Cyber Knights (or anyone else for that matter).

As for defamation, it varies a great deal by state, but generally you have to say/imply things to lower a natural person's reputation in the eyes of others. Nothing in the article suggested that to me. Ditto a claim for common law fraud--it's hard to prove at the best of times. No chance here.

Me, I'd be looking hard at section 52 of the Trade Practices Act, which prohibits corporations engaging in misleading or deceptive conduct. Based on the "evidence" I've seen so far, an assertion that SCO has the entitlement to require anyone to take a licence from them would have to be questionable at best, or outright false at worst. Best part is for this context, even innocent deception (eg maker honestly mistaken about what they say) is caught, let alone reckless indifference to the truth. A section 52 action would probably stand or fall depending on whether SCO loses or wins in the USA.

"(1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of copyright, then, whether the person making the threats is or is not the owner of the copyright or an exclusive licensee, a person aggrieved may bring an action against the first-mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats, and may recover such damages (if any) as he or she has sustained, unless the first-mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or, if done, would constitute, an infringement of copyright."

I wonder whether SCO has fallen foul of it...

I thought I might just inform readers that the Australian position on copyright in a compilation of facts is that it is protectable subject matter as long as effort was expended in its compilation or there is some sense of order in the compilation. I think this is an important point for this discussion because no other Common Law country has a similar position to Australia.

The decision was handed down in the Federal Court decision of Telstra v Desktop Marketing and upheld on appeal in the Full Court of the Federal Court here. It was found in that case that the phone company Telstra had exclusive rights to its compilation of the White Pages residential telephone directories. The US case of Feist was mentioned but not followed and the UK case of Hotten was distinguished.

I personally think that it is, on the one hand, ridiculous that people should get people can get copyright for compiling facts, but on the other hand, sensible considering that copyright protects the expression of the ideas or facts rather than the ideas or facts itself (ie protectable if the way in which the facts are expressed is original).

I thought I might just inform readers that the Australian position on copyright in a compilation of facts is that it is protectable subject matter as long as effort was expended in its compilation or there is some sense of order in the compilation. I think this is an important point for this discussion because no other Common Law country has a similar position to Australia.

The decision was handed down in the Federal Court decision of Telstra v Desktop Marketing and upheld on appeal in the Full Court of the Federal Court here. It was found in that case that the phone company Telstra had exclusive rights to its compilation of the White Pages residential telephone directories. The US case of Feist was mentioned but not followed and the UK case of Hotten was distinguished.

I personally think that it is, on the one hand, ridiculous that people should get people can get copyright for compiling facts, but on the other hand, sensible considering that copyright protects the expression of the ideas or facts rather than the ideas or facts itself (ie protectable if the way in which the facts are expressed is original).

Just quickly, I don't have it wrong unfortunately. I'll just clarify in case this is the source of confusion, I'm talking about Australian copyright law, not American copyright law. So even though a big bad law like the DMCA has exemptions, this doesn't mean the Australian copyright Act does. That's how backward it is. In fact, the Australian copyright law is from 1968, so that gives you an idea of how out of touch it would be for modern day technologies. (I'm of course being a little unfair, the act has had some amendments since 1968.)

The so called 'fair use rights' you mention are explicitly denied in the Australian copyright act.

You can read a copy of the copyright act here if you want to.

An excellent info sheet, dated November 2001, which is presented in plain english and relating specifically to copying tapes, CDs and records can be found here. It is a clear, concise and worthwhile read, I'd recommend you take a look if you are at all interested.

Onto the topic of technologies that allow copying and playing of copyrighted material. They are not illegal devices themselves because, for example, they could be used to copy and play music written by yourself to which you hold the copyright. Alternatively, it would be legal for you to make copies of music if you got the permission to do so from the person/record company that holds the copyright..... However, the companies who make these devices run a serious risk of facing litigation because they are 'authorising' copyright infringement, by 'inviting' people to break the law.

Unfortunately, just because every Australian man and has dog is breaking Australian copyright law doesn't make it legal. Just because technology has moved beyond 1968 doesn't make it legal. It is true that someone is unlikely to be sued for making a personal backup of a CD. Afterall, the law does apply to VCRs as well, and no one I know has been draged off to court for copying a show to watch later. Still it is the law, which was my original point, and that law is out of touch.

---

I would like to point out that although authorisation of illegal copying is general regarded as a breach of Copyright in Australia, there are plenty of exceptions to this rule.

The exception of most interest here was introduced by the Digital Agenda copyright reforms in 2000. They are sections 39B (for works) and 112E (for subject matter other than works) of the Copyright Act 1968 (Cth). These sections preclude from the infringement by authorisation provisions anyone who provides a communication service.

The purpose of the introduction of these sections was precisely to prevent the big record labels going after ISPs for something which, as pointed out before, they legally have no control over (due to the Privacy Act 1988 (Cth)).

I personally cannot see how such litigation can be successful in the courts in light of sch provisions unless there is some other way of reading the wording "not taken to have authorised any infringement of copyright".

I would like to point out that although authorisation of illegal copying is general regarded as a breach of Copyright in Australia, there are plenty of exceptions to this rule.

The exception of most interest here was introduced by the Digital Agenda copyright reforms in 2000. They are sections 39B (for works) and 112E (for subject matter other than works) of the Copyright Act 1968 (Cth). These sections preclude from the infringement by authorisation provisions anyone who provides a communication service.

The purpose of the introduction of these sections was precisely to prevent the big record labels going after ISPs for something which, as pointed out before, they legally have no control over (due to the Privacy Act 1988 (Cth)).

I personally cannot see how such litigation can be successful in the courts in light of sch provisions unless there is some other way of reading the wording "not taken to have authorised any infringement of copyright".

I would like to point out that although authorisation of illegal copying is general regarded as a breach of Copyright in Australia, there are plenty of exceptions to this rule.

The exception of most interest here was introduced by the Digital Agenda copyright reforms in 2000. They are sections 39B (for works) and 112E (for subject matter other than works) of the Copyright Act 1968 (Cth). These sections preclude from the infringement by authorisation provisions anyone who provides a communication service.

The purpose of the introduction of these sections was precisely to prevent the big record labels going after ISPs for something which, as pointed out before, they legally have no control over (due to the Privacy Act 1988 (Cth)).

I personally cannot see how such litigation can be successful in the courts in light of sch provisions unless there is some other way of reading the wording "not taken to have authorised any infringement of copyright".

I would like to point out that although authorisation of illegal copying is general regarded as a breach of Copyright in Australia, there are plenty of exceptions to this rule.

The exception of most interest here was introduced by the Digital Agenda copyright reforms in 2000. They are sections 39B (for works) and 112E (for subject matter other than works) of the Copyright Act 1968 (Cth). These sections preclude from the infringement by authorisation provisions anyone who provides a communication service.

The purpose of the introduction of these sections was precisely to prevent the big record labels going after ISPs for something which, as pointed out before, they legally have no control over (due to the Privacy Act 1988 (Cth)).

I personally cannot see how such litigation can be successful in the courts in light of sch provisions unless there is some other way of reading the wording "not taken to have authorised any infringement of copyright".

More interesting than 'Donkey Voting' is the sadly recently outlawed Langer Voting Method.

Australia uses a preferential voting method. So voters must number the candidates from 1 to N in order of preference. As the votes are counted, the candidate with the least number of votes has their preferences distributed until someone has a vote of over 50%.

What Albert Langer noticed was that there wasn't anything in the wording of laws at the time to actually require you to fill in every box correctly. You could cast a vote of 1, 2, 3, 4, 4, 4, 4, 4 (where preferences 1, 2 and 3 were valid and every preference marked 4 was invalid.

It was a watershed. Finally, people could vote for minor parties without their preferences assisting the major parties. The courts ended up ruling that the voting method was legal but publicising it wasn't. (Then, of course, they changed the wording to patch things up so the Langer Method no longer worked.)

• There are two different ways to breach copyright law in Australia:
  • Directly breaching copyright (copying something which you have not been given the right to copy).
  • Authorising the breach of copyright (the sharing of copyrighted material which others do not have the right to copy could be regarded as this)
• There are no general fair use provisions in Australia. You may use copyrighted material only to the extent that it has been licensed for your use. [There are some specific fair use provisions for software but none for music].
• Putting a photocopier on the street is illegal as soon as anyone has used it to breach someone else's copyright if you have not given the user sufficient warning. [note the Uni of NSW photocopier case which largely defined copyright law in Australia - you will find it on AustLII if you are interested].

It's Legal Information Institute (LII), not "legal law institute".

You'll find that Cornell got the ball rolling for LIIs: CanLII, Austlii, etcLII.

Good places to go to for free legal info. Think of them as the FSF of the legal world.

the copyright holder makes an attempt to protect it.

IANAL but the current ruling, in conjunction with this little beauty from Section 47C of the Copyright Act.

For those that don't want to follow the link, given that subsections 1 and 2 outline the legal reasons for making back-ups, subsection 4 reads,

(4) Subsections (1) and (2) do not apply to the making of a reproduction of a
computer program:

{snip!}

(b) if the owner of the copyright in the computer program has so designed the program that copies of it cannot be made without modifying the program; or

the copyright holder makes an attempt to protect it.

IANAL but the current ruling, in conjunction with this little beauty from Section 47C of the Copyright Act.

For those that don't want to follow the link, given that subsections 1 and 2 outline the legal reasons for making back-ups, subsection 4 reads,

(4) Subsections (1) and (2) do not apply to the making of a reproduction of a
computer program:

{snip!}

(b) if the owner of the copyright in the computer program has so designed the program that copies of it cannot be made without modifying the program; or

Music (and everything else) has no legal restrictions on what the owner of the copyright can license or not license you to do. You will find that most music is licensed ("sold") to you such that you can listen to that intelletual property and not much else (ie not make any copies). Such a license carrys weight in Australia and a breach of the license is a civil offence (unless you profit out of the breach then it is criminal).

In Australia there happen to be some other funny copyright thingys to do with software - eg the right to copy the software to allow creation of interoperable products, and the right to copy the software to allow the reproduction and fixing of bugs in that software. Read more about that in the Copyright Act at AustLII. (software stuff in around section 47 - it isn't really all that heavy)

Other than that the copyright owner can license their intellectual property however they want (which will ordinarily prevent a copy being made).

That is - the guy who did this has likely committed a civil offence (but not a criminal offence).

That statement is true. It is a breach of copyright to make a copy(any type, including archival) of any digital media except computer programs.

So, you are permitted to make backup(and other types - security/bugfix) copies of software CDs, but the Copyright Act of Australia (1968 & 1988) prohibits copying of audio, video, picture disk, etc media.

See my post from a couple of days ago for the references to the Act itself.

COPYRIGHT ACT 1968 See Section 47C

Here's a link to a filing he made in 1996.

AFAICT, making copies for back-up, bugfixing or security testing is still excepted in the Australian copyright law.

Sorry, when I waded my way through the Copyright Act 1968(ugh!), I kind of mixed things up in my mind.

So, YES, archival copies of a computer program(extremely specific, a WAV file is NOT a program), is allowed under Section 47C.(1)

It's the archival of sound recordings which is limited to (mainly) the National Archives.

Interestingly, both the 1968 act(Broadcast Decoding Devices)) and 1988 act(Digital Rights Management) have provisions making copy protection circumvention devices illegal to make, sell, import, advertise or supply, unless used for the purposes you describe above.(2) You can still USE them legally, however. Doing something illegal with the decoded media is still illegal, though.

Ref: (1) COPYRIGHT ACT 1968
(2) Short Summary of Changes to the Copyright Act - See second point in What else is changing?

Australia it is not illegal to give away copyrighted material, only if you sell it.

you are 100% incorrect.

If you give it away it is considered a matter of the civil courts.

Clearly the person you replied to was confused about the meaning of 'illegal' vs. 'criminal', else they would not have said that the civil courts deal with it.

This has some basis in law. Compare the section of the Copyright Act 1968 dealing with civil actions to the section dealing with criminal offences. You will find that the criminal offences only deal with copyright infringement where there's money involved or where it occurs to an extent that will prejudicially affect the owner of the copyright. In other cases it is a civil, not criminal, matter.

The Australian Copyright Council also has an information sheet on the topic.

Australia it is not illegal to give away copyrighted material, only if you sell it.

you are 100% incorrect.

If you give it away it is considered a matter of the civil courts.

Clearly the person you replied to was confused about the meaning of 'illegal' vs. 'criminal', else they would not have said that the civil courts deal with it.

This has some basis in law. Compare the section of the Copyright Act 1968 dealing with civil actions to the section dealing with criminal offences. You will find that the criminal offences only deal with copyright infringement where there's money involved or where it occurs to an extent that will prejudicially affect the owner of the copyright. In other cases it is a civil, not criminal, matter.

The Australian Copyright Council also has an information sheet on the topic.

165. Moreover, the spectre of "global" liability should not be exaggerated. Apart from anything else, the costs and practicalities of bringing proceedings against a foreign publisher will usually be a sufficient impediment to discourage even the most intrepid of litigants. Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this especially if that judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture.

166. However, such results are still less than wholly satisfactory. They appear to warrant national legislative attention and to require international discussion in a forum as global as the Internet itself[202]. In default of local legislation and international agreement, there are limits on the extent to which national courts can provide radical solutions that would oblige a major overhaul of longstanding legal doctrine in the field of defamation law. Where large changes to settled law are involved, in an area as sensitive as the law of defamation, it should cause no surprise when the courts decline the invitation to solve problems that others, in a much better position to devise solutions, have neglected to repair.

I did not supply any alternative, because your example was based upon the fundamental misunderstanding of the issue. At least you have now conceeded the point that this is about defamtion occuring within a jurisdiction. I would give an alternative, but I'm afraid your hypothetical is a poor one. I don't understand, for instance, who is being defamed by the use of italics. This is clearly a central question apropos defamtion. Moreover, the use of the death penalty moves this out of the realm of civil and into the realm of criminal law, where quite different principles apply. (Ie. it becomes a matter of extradition rather than enforcing a foreign money judgment). Reformulate your problem a little more carefully, and I will be happy to give an alternative which reflects the law as I understand it.

I also have a question for you. Are you saying that a state cannot legislate for events occuring within its territory, merely because of the distance of the perpetrator? I can understand this argument in relation to criminal law, where intent is vital (though I doubt many states would allow external peperators such as bin Laden to escape on this technical nicety), but for a tort of strict liability (where the tort if founded upon the damage rather than any intent) like defamation, that would seem an odd result indeed.

Before you go on declaring this decision to be a 'disaster', I think you really ought to read the judgment, especially the joint judgment and that of Kirby J. You should note that this a unanimous decision. Seven very different judges have decided that it is not necessary to completely (and illogically) redefine the common law regarding defamation, merely because of the involvement of the Internet. This is a very good decisison. Think of all the oppressive law that has been made because legislators and judges have been panicked into making new law for the Net. Like the Supreme Crt decision to throw out the CDA, this is an example of high court judges say, "Stay calm, it's only the internet, the sky is not falling."

What can they do to me, since I'm in the USA? Would they try to get the US Government to extradite me?

International extradition is only for criminal offences, and even then only when the conduct alleged is criminal in both contries.

The Court acknowledged (at paragraph 53) that a defamation action will be pointless if the defendant does not have assets in a jurisdiction that will enforce any judgement

At paragraphs 51-52 of the leading judgement, there is a strong suggestion that even though Victorian law will be applied, the defences available in New York will influence the effect of Victorian law in the circumstances of the case. This is something that Justice Gaudron repeatedly suggested in the hearing (she delivered a separate judgement that I haven't gotten to reading yet, but the fact that the lead judgement includes this suggestion is promising since it means the position won't disappear with her impending retirement).

Numbered paragraphs is part of a raft of publications standards we brought in over the last couple of years - the other part is the citation [2002] HCA 56, which is given to the publication by the courts (in this case the [H]igh [C]ourt of [A]ustralia) and not by any particular legal publisher.

[2002] HCA 56 means that this is the 56th case handed down by the High Court in the year 2002.

This was in a large part driven by AustLII which publishes for free on the WWW all Australian case-law and statutes.

The US is still quite a way behind on this, in part because much of the case-law is tied up with specific commercial legal publishers who own the citation mechanisms (and also often have exclusive publishing deals).

I found your comment on the judgment style quite interesting - not coming from a US background it as always seemed normal to me ;)

A. if you post something defamatory on the web, and it affects someone somewhere in the world, don't be surprised if they try to sue you in whatever country that person has a reputation to protect.

B. most baseless suits (including those where the plaintiff has no reputation in the country where the suit is lodged) will be stayed in most jurisdictions--it's called forum non conveniens.

C. defamation is not a crime. This isn't about extraterritorial criminal laws.

D. Insulting a religion or king *may* be a crime -- eg lese majeste in Thailand. Problem: depending where the poster is, courts of that country may not have jurisdiction, and the crimes are unlikely to be extraditable (no dual criminality and all that). Solution: if you insult a country or its king, don't visit it. If you insult a religion, don't visit countries where that is an official or protected religion.

E. much free speech law in the US proceeds on a bogus premise anyway. The First Amendment (try reading it) is supposed to prevent the Government enacting laws which impose censorship ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press") and was intended to prevent laws stifling policical discourse. It is a restraint on Congress' ability to enact laws. It shouldn't apply to one private person slurring another without justification, any more than it applies to shouting fire in a crowded theatre. No Federal law == amendment not apply.

F. Even if a US company or person is sued overseas, unless they have assets in that jurisdiction, they are likely to be safe. No assets = nothing to enforce the judgment against locally, even if the plaintiff wins. Further, US courts will probably not enforce a foreign judgment obtained under libel laws which are incompatible with the ridiculously overbroad reading given to the First Amendment.

G. the issue in the Dow Jones case was interlocutory: could the case proceed to hearing in Victoria or not? There has been no trial. Whether the story was defamatory or not, and whether or not any defence applies, is only now to be considered.

H. the result of the judgment is to affirm responsibility -- if you have to power to say something nasty about someone, wherever they are located, you have the correlative responsibility for what you say. Being based overseas is no excuse. My spin: if you don't like that, use technological means to limit who sees the material; and/or check your facts about what you are saying; and/or don't make it a slur; and/or check the local laws of the places your target lives & has a reputation, and is accordingly likely to sue. (The judgment also politely observes that many US courts do not understand the single publication rule! :).

I. Godfrey v Demon was not about this issue. There, the defendant ISP which carried the objectionable posting was based in the UK, as was the plaintiff. See a good potted summary of the case.

J. Before anyone jumps to a conclusion and complains about US-centricity, I am not based in the US. Many web servers are.

K. I am a lawyer, but this post does not constitute legal advice, is not offered with any warranty, and I assume no responsibility for anyone acting upon it.

This is important stuff, and not just for Australia - it sets a precedent which other jurisdictions will follow.

So what do you think? Erosion of Your Right Online (TM) or a transjurisdictional extension of them?

Try again.http://www.austlii.edu.au/au/cases/cth/high_ ct/2002/56.html

You won't find it in the text of the Contitution, you'll have to look here and in the subsequent jurisprudence of the High Court I'm afraid.

If the Government goes ahead with this then anyone they like can sue the Commonwealth (the federal government) or the State Governments (whoever is actually putting the block on) and try to have them stopped. I think that it would be fairly likely that the High Court would stop the blocking of most things (given that it is a violation of the implied right in the Constitution) but that it would not extend so far to declare violence inciting protected by free speech.

Australia has laws against publishing materials designed to insite violence, for example in Western Australia our Criminal Code s 78 makes it a crime to publish material that would incite racial hatred.

If the Government goes ahead with this then anyone they like can sue the Commonwealth (the federal government) or the State Governments (whoever is actually putting the block on) and try to have them stopped. I think that it would be fairly likely that the High Court would stop the blocking of most things (given that it is a violation of the implied right in the Constitution) but that it would not extend so far to declare violence inciting protected by free speech.

Australia has laws against publishing materials designed to insite violence, for example in Western Australia our Criminal Code s 78 makes it a crime to publish material that would incite racial hatred.

So, I suppose by publishing the commands necessary to change your MAC address (specifically to circumvent the access control of the server), you are violating the DAA.

The DAA, DMCA and EUCD only cover "technical protection measures" that protect a copyrighted work. The anticircumvention rules are bad, but they are not so bad that you can just slap an access control on something and expect to be protected by the law.

Case in point - An australian judge has ruled that PS2 modchips are not circumvention devices within the meaning of the DAA.

The decision in the case (Kabushiki Kaisha Sony Computer Entertainment v Stevens [2002] FCA 906) is available here

This was the first attempted prosecution in Australia under the changes introduced in the Copyright Amendment (Digital Agenda) Act 2000, and Sony has vowed to appeal the above adverse decision to the full bench of the Federal Court.

how can you have 'official' and 'unofficial' secrets? How can that work? and what secrets are 'official' and which are 'unofficial'?

The unofficial answer is that I could tell you, but I'd have to kill-9 you. The official answer? You're not cleared for that.

But seriously folks... the definition of the types of information that is considered officially secret is within the Official Secrets Act legislation. I've signed the Official Secrets Act (Australian version - actually section 79 of the Crimes Act). And that's about all I can really say about it, apart from the fact that the quoted link's to an unofficial version. The UK version is a bit different, and the quoted link is to an official version.

Unlike many websites, neither has anything to do with secretaries, or secretions.

We have no doctrine of "fair use" under copyright laws, meaning that taping a movie tonight to watch tomorrow is illegal

Wrong! It's actually protected by law, and further extended by the 2000 amendment. Similar fair use clauses apply to other media. And see my other post: we do have freedom of religion guaranteed!

Australia is vastly different to the USA. Our consitutution guarentees us almost no rights. No freedom of speech, or religion, or of the press. No right to keep and bear arms. No protection aginst unreasonable searches and siezures, or against self incrimination. We have no doctrine of "fair use" under copyright laws, meaning that taping a movie tonight to watch tomorrow is illegal, because our courts never decided we have the right to time-shift anything. We have our own version of the DMCA, with penalties of up to five years jail. Australia is a nice place to visit, but I wouldn't want to live here. Oh wait, I do.

The Australian constitution does guarantee freedom of religion. Freedom of speech is an issue, do a search for interesting and relevant cases here

Well, no and yes. The Australian Constitution is largely based on the US Constitution, but does not include anything resembling the Bill of Rights. There is no explicit right of free speech written into the Constitution.

However, in a number of cases, most famously Aust. Capital TV v C'th, the High Court discovered an implicit "Freedom of Political Communication", woven into the fabric of the Constitution, (ie. since the constitution sets up a representative democracy, there must be a presumption of a politically informed electorate, and this implies a right to be informed.)

Note that this freedom of communication is restricted to political matters ('political' as it relates to the electoral process). It seems unlikely, for example, that a pornograper could argue for constitutional protection under this principle.

Well, no and yes. The Australian Constitution is largely based on the US Constitution, but does not include anything resembling the Bill of Rights. There is no explicit right of free speech written into the Constitution.

However, in a number of cases, most famously Aust. Capital TV v C'th, the High Court discovered an implicit "Freedom of Political Communication", woven into the fabric of the Constitution, (ie. since the constitution sets up a representative democracy, there must be a presumption of a politically informed electorate, and this implies a right to be informed.)

Note that this freedom of communication is restricted to political matters ('political' as it relates to the electoral process). It seems unlikely, for example, that a pornograper could argue for constitutional protection under this principle.

The Federal Cybercrime Act 2001 (which was, coincidentally, rushed through parliament with little or no debate shortly after the 9/11 attacks) would apply to offences committed against a computer anywhere in Australia, not just within the state of Victoria.

Section 477.2 Unauthorised modification of data to cause impairment would cover hacking or attempted hacking of peoples systems, and Section 477.3 Unauthorised impairment of electronic communication would cover DoS attempts. Both sections have a maximum penalty of 10 years jail.

Ironically, Section 478.3 Possession or control of data with intent to commit a computer offence would make it an offence to even possess software or information required to hack or DoS somebody, if they had intent to use it to commit an offence against section 477. Three years up the river for this one.

Oh, and Section 3LA in schedule two of the Act says that a law enforcement authority could obtain an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following: (a) access data held in, or accessible from, a computer that is on warrant premises; (b) copy the data to a data storage device; (c) convert the data into documentary form. ie they can force you to help them search for incriminating evidence, divulge passwords, encryption keys, etc... and you can get 6 months jail if you refuse to comply.

IMHO the Cybercrime Act is a steaming crock of sh_t. It criminalises practically anything you can twist its vague definitions to apply to. Thus, its a Very Big Stick for the police to wave at people. Pity they'd never have the balls to wave it at the RIAA, MPAA, and their merry men.

The Federal Cybercrime Act 2001 (which was, coincidentally, rushed through parliament with little or no debate shortly after the 9/11 attacks) would apply to offences committed against a computer anywhere in Australia, not just within the state of Victoria.

Section 477.2 Unauthorised modification of data to cause impairment would cover hacking or attempted hacking of peoples systems, and Section 477.3 Unauthorised impairment of electronic communication would cover DoS attempts. Both sections have a maximum penalty of 10 years jail.

Ironically, Section 478.3 Possession or control of data with intent to commit a computer offence would make it an offence to even possess software or information required to hack or DoS somebody, if they had intent to use it to commit an offence against section 477. Three years up the river for this one.

Oh, and Section 3LA in schedule two of the Act says that a law enforcement authority could obtain an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following: (a) access data held in, or accessible from, a computer that is on warrant premises; (b) copy the data to a data storage device; (c) convert the data into documentary form. ie they can force you to help them search for incriminating evidence, divulge passwords, encryption keys, etc... and you can get 6 months jail if you refuse to comply.

IMHO the Cybercrime Act is a steaming crock of sh_t. It criminalises practically anything you can twist its vague definitions to apply to. Thus, its a Very Big Stick for the police to wave at people. Pity they'd never have the balls to wave it at the RIAA, MPAA, and their merry men.

The Federal Cybercrime Act 2001 (which was, coincidentally, rushed through parliament with little or no debate shortly after the 9/11 attacks) would apply to offences committed against a computer anywhere in Australia, not just within the state of Victoria.

Section 477.2 Unauthorised modification of data to cause impairment would cover hacking or attempted hacking of peoples systems, and Section 477.3 Unauthorised impairment of electronic communication would cover DoS attempts. Both sections have a maximum penalty of 10 years jail.

Ironically, Section 478.3 Possession or control of data with intent to commit a computer offence would make it an offence to even possess software or information required to hack or DoS somebody, if they had intent to use it to commit an offence against section 477. Three years up the river for this one.

Oh, and Section 3LA in schedule two of the Act says that a law enforcement authority could obtain an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the officer to do one or more of the following: (a) access data held in, or accessible from, a computer that is on warrant premises; (b) copy the data to a data storage device; (c) convert the data into documentary form. ie they can force you to help them search for incriminating evidence, divulge passwords, encryption keys, etc... and you can get 6 months jail if you refuse to comply.

IMHO the Cybercrime Act is a steaming crock of sh_t. It criminalises practically anything you can twist its vague definitions to apply to. Thus, its a Very Big Stick for the police to wave at people. Pity they'd never have the balls to wave it at the RIAA, MPAA, and their merry men.

Ford Motor Company has officially and unconditionally conceded its complete, utter, and perpetual loss on the merits of the FORD v. 2600 "FuckGeneralMotors.com" case. Ford has dismissed its appeal to the Sixth Circuit U.S. Court of Appeals, meaning that Ford has completely given up all attempts to reverse the victory that 2600 Enterprises won on December 20, 2001. The mutually agreed dismissal papers were officially entered by the Sixth Circuit on June 27, 2002.

In the words of another FORD from Michigan -- former President Gerald Ford, "Our long national nightmare is over."

2600, which has given up nothing other than an extremely improbable claim for getting its attorneys' fees back from FORD, has expressly reserved the right to point "FuckGeneralMotors.com" anyplace whatsoever that 2600 pleases -- including at the FORD homepage -- at any time whatsoever, with or without notice.

Of course, the plan in March, 2001, when the lawsuit arose, was to point the address someplace more suitable than the FORD homepage, probably as soon as mid-April or early May, 2001. In other words, the lawsuit has actually delayed 2600's prior plans (several other domain names that were part of the same project have been re-pointed several times, while FuckGeneralMotors.com has remained pointed at FORD). Now that the lawsuit has been won, 2600 will be soliciting suggestions during the H2K2 conference, for the best place to point the Domain Name. Ultimately, this just proves how silly and counterproductive FORD's litigation strategy always has been from the beginning.

In December, 2001, Judge Robert Cleland of the Eastern District of Michigan, dismissed FORD's lawsuit in its entirety for "failure to state a claim upon which relief may be granted" -- which means that even assuming every single allegation in FORD's pleadings to be true (but the allegations weren't all true), FORD still had no legal right whatsoever to prohibit 2600 from pointing FuckGeneralMotors.com at FORD's homepage.

Needless to say, FORD did not like that outcome. Neither did a lot of other intellectual property interests all over the world. Indeed, a google search will reveal a number of PowerPoint(tm) presentations published on the Web (e.g., http://austlii.edu.au/ hkitlaw/resources/Pun_IP.pdf) by various intellectual property lawyers, emphasizing that the decision is being appealed. Well, now it isn't.

The decision stands. It is published at 177 F. Supp. 2d 661. And it is binding precedent. The decision has even been cited by the Sixth Circuit already, in an interim order that was issued in the "TaubmanSucks" case handled by Paul Levy of Public Citizen. http://www.citizen.org/documents/TaubDecision-3-11 -02.pdf .

When FORD filed its appeal to the Sixth Circuit U.S. Court of Appeals in January, 2002, FORD sought to have the case reinstated so that FORD could take it to trial. 2600 filed a cross-appeal, solely on the issue of whether FORD should be required to reimburse 2600 for its legal bills (such fee awards, in cases under the Lanham Trademark Act, are not especially common and occur only in "exceptional" cases -- so the Sixth Circuit was likely to defer to Judge Cleland's decision to award 2600 its "costs" but not its attorneys' fees). 2600 still gets to take its "costs" back from FORD, and our lawyer is preparing to serve a deposition notice on Bill Ford, to gather the information necessary to garnish FORD's bank accounts, unless FORD cuts us a reimbursement check forthwith.

But the key point is that 2600's victory is permanent and FORD has voluntarily foregone any appeals. The savings, in terms of attorneys' fees, from our standpoint, are enormous.

For those interested in the Antipodean angle, the case Gutnick v Dow Jones has recently been granted leave to appeal to Australia's highest court. There should be argument before the High Court of Australia sometime in the second half of the year with a decision in early 2003.

The state of play is that Gutnick has been allowed to bring his action in Victoria, Australia, despite the protests of Dow Jones. Dow Jones are appealing that decision.

The earlier decision can be found here.

Used to be Slashdot folks were on top of things.

Please read what the judgement says before posting. DVD videos certainly contain computer programs that create the interactive menus. However, that doesn't mean that the whole disc is a computer program, any more than then software inside a car makes a car a computer program.

However, since the essential object of the rental, i.e. the reason for renting the DVD, is not the menus and language selection (which is what the software provides) then it does not matter, and the DVD can be rented just as a normal video tape.

As always, IANAL, and this is a five minute summary of a 10+ page document....

Why does software differ from books, video, etc in the applicability of the doctrine of first sale?