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I was involved in this case as an expert witness, so, if anyone has questions I'd be happy to answer them.

In a recent Australian court case, as well as arguing that DVD Videos were computer programs, Warner argued that playing DVDs involved making unauthorized copies of the computer programs on them. As well as ruling that DVDs were not computer programs, the judge ruled that playing a DVD did not make an unauthorized copy of a computer program. The judgement is here

Your use of the misnomer "illegal immigrant" makes it pretty clear that you've swallowed the rhetoric that our Immigration minister spouts at every opportunity. He knows that demonising these people in this way strikes a chord with the large numbers of Australians who need someone to blame for their misery. As far as he is concerned, it's better that unhappy Australians blame their problems on a bunch of faceless, voiceless, suffering people who they don't understand, than on his government. Who do you think is most responsible for your problems?

These people are not illegal immigrants, they are asylum seekers. They are fleeing their own country because they fear for their lives. Is this a situation that you have ever had to face? How do you think you would deal with it?

Australia is a voluntary signatory to the UN's 1951 Convention relating to the Status of Refugees. Because of this, Australia is obliged under international law to offer support to those fitting the (very specific) definition of a refugee.

If you still don't accept this, how do you suggest that these asylum seekers obtain "legal" entry into Australia? We don't have any diplomatic presence in Iraq or Afghanistan. The queue that they are supposedly jumping does not exist.

I certainly think that my taxes are better spent helping these people than on a pointless attempt to censor the Internet.

I'm happy to discuss this topic with you further, if you like, but off-site. It's getting way off topic.

Back on topic...

Yes, I realise it would be technically difficult to implement a national filter to effectively censor the web content available to Australians, and that there would always be ways arounds it. But surely that doesn't mean that a partially-effective solution could be implemented. Australia only has a finite number of ISPs, and a handful service the majority of the market.

You may not be aware that by law, Australian telecommunications companies are required to provide government agencies with the ability to intercept communications. I have worked for a large Australian telephone company, and I know that various law enforcement agencies use this provision on a very regular basis.

Given that:

• the government has the legal ability to force carriers to intercept communications; and
• I know they regularly use this ability to intercept telephone calls

The content can counter the disclaimer depending on form. For example, if you say "John Doe raped Jane Bloggs", that will be read as an attempt to state facts rather than an opinion. On the other hand, if you say "I believe John Doe raped Jane Bloggs", it's probably a statement of opinion put together with the disclaimer. If you say "Jane Bloggs was raped. In my opinion, the most likely culprit is John Doe", then the disclaimer isn't even necessary.

You need to be careful though - in the United States, opinion is absolutely protected in the same way truth is protected, because "there can be no such thing as a false opinion." Here in New South Wales, opinion has unqualified protection under the Defamation Act 1974 (NSW) s32. But on the Internet you need to make sure that the web site you publish on is in a jurisdiction that has this unqualified protection of opinion, but as long as it's in such a jurisdiction, and you make no attempt to limit the persons who access your web site, a defendant in another jurisdiction won't be able to touch you, even under their local laws (Kostiuk v. Braintech (1999) 171 DLR (4d) 46).

You also need to make sure that when making comment you provide the statement of fact that backs it up. For example, if you say "Joe is a person incompetent to hold a position as a public official", you might be nailed in some places. On the other hand, if you say "Joe cannot read. A person who cannot read is incompetent to hold a position as a public official", the provided it's true that Joe can't read, your OK (in fact in this case you'd be OK most anywhere in the English speaking world).

It's best to make it absolutely clear what part is opinion (or "comment" in defamation terms) and what parts are facts when you're saying something you know somebody might claim is defamatory. This is critical (although less so in the US) - failure to make clear the separation between facts and comments can kill the "fair comment" defence. In some jurisdictions you also have to prove your facts, so it's better to say "I received this email which purports to be from X and says Y" rather than "X sent me this email that says Y".

Of course it's easier just not to say anything bad about other people, but much more boring.

IANALY,TINLA

However, they have signed on board the
International Covenant on Civil and Political Rights, which states that everyone has the right of freedom of expression (artile 19). The proposed law seems to seriously hinder that right as a non-unanimous decision of a bunch of minority-view cencors can deem you guilty and slap a nice $5,500 fine on you.

Again, I wonder the relavance to the location of the server. This is not clear under the proposed law. Could anyone be guilty anywere? Will I receive a $5,500 "bill" from the NSW government concerning my website? Or will I just be arrested whenever I visit Australia?

As a member of the Australian Labor Party, I got the following passed by ACT Labor and Australian Young Labor this year:
Bill of Digital Rights and Responsibilities

This branch recognises that global electronic communications have created a defacto standard for free speech online. ACT Labor further recognises that it is not a coincidence that the most dynamic and enduring societies and economies are those that foster freedom of expression.

Recent and proposed legislation relating to digital communications has acted to erode legal certainties and rights. This trend should be decisively reversed.

This branch calls upon the Federal Parliamentary Labor Party, once in Government, to commence public debate on a Bill of Digital Rights and Responsibilities, to be legislated using the Commonwealth's electronic communications powers under the Constitution.

Such a Bill would include:

• A recognition that when communicating online there is the responsibility to not racially vilify or otherwise contravene the Commonwealth Racial Hatred Act or other Commonwealth Anti-Discrimination legislation.
• A less restrictive national definition of defamation, over-riding laws of the states and territories. The defamation laws would provide:
  • Freedom for non-malicious speech acts concerning corporations
  • Freedom for non-malicious speech acts concerning matters of public interest
  • That in the absence of malice no general damages be awarded.
  • The burden of proving malice would be with the complainant.
• A right to not be criminally prosecuted for any speech act made digitally that is of a purely expressive nature, with well-defined non-trivial exceptions. Also, a right to publish those speech acts on or by means of computers within Australia.
• Some guarantee of the opportunity for each Australian not just to access Digital information, but to publish it. The information super-highway must not be one-way: barriers to entry must be lowered as much as possible for the Australian with an idea on a small budget.
• A right to "fair use" of all digital intellectual property, restoring the original intent of copyright law.
• A right to not have substantive personal information transmitted from one's personal computer without consent.
• A right to use communications technology provided by an employer or educational institution for non-work or non-study purposes to a limited extent.

  Explanatory points:

  The relevant parts of the Commonwealth Racial Discrimination Act are here

  The ideas for reforming defamation law come from "The Law Report" on Radio National, see here

  The section concerning criminal prosecution addresses many problems, present and potential. An example of how bad things can get is a bill before the SA parliament. See here

  The "fair use" of digital intellectual property could become a big problem in the future. Presently it is a crime to provide the means by which someone may decrypt encrypted digital data such as a DVD, without the authority of the publishers. This has the effect of restricting "fair use" of copyrighted works. Yet this does not prevent piracy.

  The right to use workplace technology for non-work purposes is important. Catch-all provisions can be placed in employment agreements that allow employees to be dismissed for trivial reasons or for their politics. There is also the possibility that by making non-work communications unauthorised, employees are criminally liable for "misusing" computers in the workplace.

In Australia it would be a crime - Crimes Act 1914 (Cth) s85T - sending false postal messages, penalty being imprisonment for 1 year.

Don't worry too much about subsection 2, none of those provisions apply even though it looks like they might. Subsection 1 is the problem, because it defines interception as "listening to or recording". Since the software downloads are not audio content, they're not "listening to" it, and it seems unlikely they're recording it. There's no reason to expect a court to decide that a checksum, CRC or other hash would constitute "recording", since "recording" implies substantially duplicating the content rather than merely identifying the content probabilistically.

It is unlikely that a court would hold that anything other than the reproduction of the content itself would constitute "recording".

IANALY,TINLA

Don't worry too much about subsection 2, none of those provisions apply even though it looks like they might. Subsection 1 is the problem, because it defines interception as "listening to or recording". Since the software downloads are not audio content, they're not "listening to" it, and it seems unlikely they're recording it. There's no reason to expect a court to decide that a checksum, CRC or other hash would constitute "recording", since "recording" implies substantially duplicating the content rather than merely identifying the content probabilistically.

It is unlikely that a court would hold that anything other than the reproduction of the content itself would constitute "recording".

IANALY,TINLA

I'd be seriously referring this case to the Australian Competition and Consumer Commission (ACCC) because this represents a violation of my privacy. Your own ISP is collecting information about your internet access without your prior knowledge or permission (granted the more technically adept have already guessed it by now by looking at their access logs, but I'm also talking about the people who don't know). Yes, I know that other services have doing the same thing for years but it is easier to prevent an external company, that exercises no influence over your ISP (eg. Gator), from collecting personal information without permission.

Now IANAL, but unfortunately there is no specific legal protection for this kind of activity (at least not in NSW) under the Privacy and Personal Information Protection Act 1998 (NSW), as the principles in the Act that must be applied in the collection and use of personal information (see Section 10) only apply to the public sector and are still subject to exemptions.

Your best bet would be the Privacy Amendment (Private Sector) Act 2000 (which amends the Privacy Act 1988 (Cth)), as this adds conditions under which the private sector can collect personal information. It's also a Commonwealth Law, so that the Act can be applied to cases all over the country (although in most cases, the courts tend to follow the lead of NSW). One big caveat of this amendment is that this still could possibly allow Excite@home to collect information if "the collection is necessary for the establishment, exercise or defence of a legal or equitable claim" (see Schedule 3, 10.1(e)). But the way things are going for Excite@home at the moment, lawyers would probably be the last thing on their minds.

If you're serious about putting a stop to this, then try your government privacy body (in my state, it's the Office of the NSW Privacy Commissioner). More letters to these people (particularly now as it's close to an election) would help all of us stand up for our collective rights.

I'd be seriously referring this case to the Australian Competition and Consumer Commission (ACCC) because this represents a violation of my privacy. Your own ISP is collecting information about your internet access without your prior knowledge or permission (granted the more technically adept have already guessed it by now by looking at their access logs, but I'm also talking about the people who don't know). Yes, I know that other services have doing the same thing for years but it is easier to prevent an external company, that exercises no influence over your ISP (eg. Gator), from collecting personal information without permission.

Now IANAL, but unfortunately there is no specific legal protection for this kind of activity (at least not in NSW) under the Privacy and Personal Information Protection Act 1998 (NSW), as the principles in the Act that must be applied in the collection and use of personal information (see Section 10) only apply to the public sector and are still subject to exemptions.

Your best bet would be the Privacy Amendment (Private Sector) Act 2000 (which amends the Privacy Act 1988 (Cth)), as this adds conditions under which the private sector can collect personal information. It's also a Commonwealth Law, so that the Act can be applied to cases all over the country (although in most cases, the courts tend to follow the lead of NSW). One big caveat of this amendment is that this still could possibly allow Excite@home to collect information if "the collection is necessary for the establishment, exercise or defence of a legal or equitable claim" (see Schedule 3, 10.1(e)). But the way things are going for Excite@home at the moment, lawyers would probably be the last thing on their minds.

If you're serious about putting a stop to this, then try your government privacy body (in my state, it's the Office of the NSW Privacy Commissioner). More letters to these people (particularly now as it's close to an election) would help all of us stand up for our collective rights.

These are the 2600.org.au mirrors of the bill, they are probably available somewhere on http://www.austlii.edu.au/ Australia's awesome law resource with searchable case law and legislation, reportedly the best law site in the world.
http://www.2600.org.au/misc/cybercrime/cybercrime- bill-2001-firstreading.pdf
http://www.2600.org.au/misc/cybercrime/cybercrime- bill-2001-explanatory-memoranda.pdf

I found this when I ran Zeta Internet and we laid coax up our building's telecommunications riser to provide some other tenants with Internet access. The building owner was cool with it until I sold the business to Pacific Internet and then he wanted to be paid for the use of the riser. So anyway I checked the legislation and found that under certain circumstances carriers have this or that right. Nevertheless we offered a fixed payment per annum and the owner didn't accept it and he stopped talking to us. I think it was a lot less than he was hoping for :-)

I can't find the legislation right now, unfortunately but it should be somewhere under http://www.austlii.edu.au/au/legis/cth/consol_act/ ta1997214/index.html.

Poetic justice? Hotline (which is client/server, NOT P2P, btw) has degraded into a banner revenue machine...perhaps their slew of advertisers will realize that focusing ads to pr0n hounds and war3z leechers is not such a brilliant idea (as it is, most of these types use nobanner hacked versions of HL anyway...)

Here's their typically self-serving slant on the court ruling.

If you have about 3 hours to kill, read the judgement in its entirety and marvel and the byzantine particulars of this case.

The new legislation is the Copyright Ammendment (Digital Agenda) Act 2000, available on AUSTLII

Technical reproductions made in the process of communication are exempt from the prohibition on copying digital works (ss. 43 and 111A). This is meant to protect ISPs and Carriers (which the Uni and Colleges are - probably). Whether copyright is breached will probably be determined as a question of degree; eg;

- Napster providing cacheing facilities allowing massive mp3 copyright infringement is bad.

- Cacheing purely to facilitate communication (eg. Universities) is OK.

Note that this is a question of degree and interpretation. Some (such as the views cited in the article) would argue that any cacheing is not purely to facilitate communication and is therefore in breach. I personally think (and hope) that the laws will be enforced more intelligently than that, only prohibiting copying restricting copyright users' rights.

Universities are worried that these new rights will allow copyright holders to charge per view, as opposed to the University downloading information once (and paying once) and then distributing it to students. They argue that this is like what University libraries do.

Anyway, I've gotten off the track. I think that cacheing that is purely for saving download costs (such as cacheing the hotmail.com frontpage) will be fine. Possible future pay-per-view lexus/nexus web-type things could cause problems.

The prohibition on circumvention (read hacking) devices has the exceptions of (amongst other things);

- making programs interoperable (s. 47D)
- correcting errors (s. 47E); and
- security testing (s.47F)

Which could make it sort of ok - although is decss (allowing DVD copying) security testing?

This, once again, is a question of degree and interpretation ...

---

Oh yes? Well such a meaningless article is typical of the Australian press (as if summarizing a whole act into 10 paragraphs is simple - I am being unfair). But its a bit hard to draw the conclusion you have made.

So.

Here are some useful links on the subject (including analysis - difficult for some slashdotters to read, but give it a try - and the actual amendments). Unfortunately some of these analyses are rather old due to the fact that the Act was proposed several years ago and passed last year:
http://www.gtlaw.com.au/pubs/digitalageaustr alia.html
http://www.roma.unisa.edu.au/08908/lect11/co mmentary.html
http://www.austlii.edu.au/au//legis/cth/cons ol_act/ca1968133/notes.html
http://www.efa.org.au/Issues/IP/copyright.ht ml

Oliver

Who, as usual, still hasn't thought up a clever sig.

>AC: And what is wrong with state funded broadcasting ?

If I subscribe to a commercial channel, that is my decision. If a government decides to finance a channel, I pay for it merely by virtue of being a citizen of that country, whether or not I want to watch that channel. I consider that an affront to my liberty.

Based on the reasoning of an abstract 'liberty' this is a seductive line. When held up to inspection against substantive reality, however, it falls apart. In the free-to-air broadcasting world, the concept of individual choice makes little sense. The simple choice of whether to watch or not (since commercial TV is unwatchable that choice is in any case forced) amounts to a very impoverished notion of 'liberty.' For myself I prefer the liberty that comes with having access to a diverse range of information, such as commercial TV in Australia (and elsewhere one suspects) refuses to provide. Alone on the basis of this kind of market failure a public intervention would be justified.

However, as the High Court determined in ACTV Australian citizens enjoy a 'freedom of political communication' flowing from the nature of their representative democracy. Again this freedom, required by citizens in exercise of their political duties, would be merely a formal one (ie lacking substance) if they had access only to the unanimous view of the commercial media. On this (what might fashionably be called 'republican') ground too, a citizen might reasonably be called on to fund a public broadcaster.

The real problem with government funded broadcasting, is one of independence, (though this is, perhaps not so pressing in an environment in which the commercial alternative exists.) The 'Corporation' in ABC is here of the greatest import, the ABC is a statutory corporation formally independent of the the government of the day. The concern, in these days of funding cuts and political appointsments to the board, is that 'Auntie' maintain her critical independence from the administration. It is against this background that the extra-curricular 'propaganda' of ABC journalists must be understood.

The reality all along was that the law's definition of broadcasting does not include "on demand" data, which of course includes any kind of webcast.

As someone has said, the Government was just trying to create FUD for the benefit of TV licencees.

Checkout this

alexgp@telstra.com

Monday is too late to reply to a Sunday thread.

But I want to agree, plus remark that I don't see why an age of consent at 16 is dumb, nor do I see why excluding a minor's guardians from this is dumb.

Also, you can see real australian law at
http://www.austlii.edu.au/

The main section that I can remember (since AustLII doesn't appear to be up at the moment) is that you have the right to review any information held on you and ask for it to be corrected if wrong.

I am not overly concerned by people attempting to do targeted marketing or to have a profile of me to make my customer experience more worthwhile, provided it is for a specific company. For example, I like having account records for the phone company so that they can suggets I change to a different mobile phone charging plan to save me money. It's a lot like having the waiters/waitresses at my local Italian restaurant knowing what I usually order. I get good service, and they get repeat business. This is good for both sides.

What I don't like is for a private company to gather information from disparate sources, throw it into a database and sell the extracted information to someone else that I may or may not have had any previous dealings with. If you check the fine print on most forms, there is a little section which says "If you sign this you agree to let us give/sell this information to a certain select few groups (eg: police)", so I have, in a roundabout sort of way, given my permissions to have this information gathered. of course, not signing the form denies me the services of that company, which is akin to blackmail in my mind.

What is more concerning is that with the speed of SMP computing and some rather funky algorithms it is possible to glean a great deal of information from trend analysis and similar techniques. This is information that you have not explicitly provided, but which has been deduced from your spending habits, amount of insurance, type of car, marital status, credit rating, etc.

Now I'm sure most of the uses for this information will be benign (if annoying) things like directed advertising, because the majority of people aren't interesting enough to be subjected to the wild schemes others here have concocted. A few will be though, and reality is often stranger than fiction. I don't want to be the guinea pig for one of those schemes. I want the opportunity to opt out, which should be my right as a consumer. Others may not be bothered by this company's motives. Fine. Let them remain in the database. I want out though.

If I am not given that option, then I may need to start taking subversive (yet amusing) action. A few random thoughts (please comment if you really are a lawyer):

• Place your signature under GPL, thus requiring derivative works to also be under the GPL.
• Encrypt everything with GnuPG
• Alter the clauses of the fine print disallowing any other entity access to the information obtained through the form before signing it.
• Any other non-violent action which puts the ball back in my court instead of the bank's/government's/corporation's.

One serious problem the Australian government faced was that many `porn' sites are password protected, and perhaps the owners of those sites would not like to give Australian government agencies the right to access their sites so they can be prohibited.

So it may be necessary to hack the sites, or to fraudulently gain access to their copyrighted material, which contravenes Crimes Act Sect 76 (and elsewhere), which act provides for a jail sentence.

What to do? It's simple: suspend the operation of all Australian criminal law as it applies to the operation of the censorship act. So that's what they did, in Part 8 - Protection from civil and criminal proceedings. What does `Draconian' mean anyway?

What does this legislative provision actually mean? Well, for example, since you might have a password or cryptographic key deemed reasonably necessary to permit the ABA to obtain information, the ABA can hire a consultant to obtain the password by torturing you. Giving Spooks the right to hack.

What is also interesting, in this regard, is the suppressed content of the Australian Government's Walsh Report " Review of Policy relating to Encryption Technologies." The government tried to suppress its contents, including this paragraph, among others which demonstrate the same intent:

1.2.28 The Crimes Act 1914 should be amended to permit the AFP, NCA and ASIO to 'hack' into a nominated computer system to secure access to that system or evidence of an electronic attack on a computer system. (paragraphs 6.2.3; 6.2.22 refer)

People have been wondering why the Australian government would bother trying to legislate to turn back the tide of internet content and have laughed at their ineptitude in writing the legislation. I suggest that the censorship legislation is merely a Trojan horse as cover for the kinds of covert operations spooks have been begging for.

This Trojan horse should be seen in the context of such legislation as NSW Law Enforcement (Controlled Operations) Act 1997 which enables police forces to break the law in order to catch criminals, after a case was lost on appeal to the High Court because the court exercised a judicial discretion to exclude evidence in a case where a criminal offence has been procured by illegal conduct on the part of police.

One serious problem the Australian government faced was that many `porn' sites are password protected, and perhaps the owners of those sites would not like to give Australian government agencies the right to access their sites so they can be prohibited.

So it may be necessary to hack the sites, or to fraudulently gain access to their copyrighted material, which contravenes Crimes Act Sect 76 (and elsewhere), which act provides for a jail sentence.

What to do? It's simple: suspend the operation of all Australian criminal law as it applies to the operation of the censorship act. So that's what they did, in Part 8 - Protection from civil and criminal proceedings. What does `Draconian' mean anyway?

What does this legislative provision actually mean? Well, for example, since you might have a password or cryptographic key deemed reasonably necessary to permit the ABA to obtain information, the ABA can hire a consultant to obtain the password by torturing you. Giving Spooks the right to hack.

What is also interesting, in this regard, is the suppressed content of the Australian Government's Walsh Report " Review of Policy relating to Encryption Technologies." The government tried to suppress its contents, including this paragraph, among others which demonstrate the same intent:

1.2.28 The Crimes Act 1914 should be amended to permit the AFP, NCA and ASIO to 'hack' into a nominated computer system to secure access to that system or evidence of an electronic attack on a computer system. (paragraphs 6.2.3; 6.2.22 refer)

People have been wondering why the Australian government would bother trying to legislate to turn back the tide of internet content and have laughed at their ineptitude in writing the legislation. I suggest that the censorship legislation is merely a Trojan horse as cover for the kinds of covert operations spooks have been begging for.

This Trojan horse should be seen in the context of such legislation as NSW Law Enforcement (Controlled Operations) Act 1997 which enables police forces to break the law in order to catch criminals, after a case was lost on appeal to the High Court because the court exercised a judicial discretion to exclude evidence in a case where a criminal offence has been procured by illegal conduct on the part of police.

One serious problem the Australian government faced was that many `porn' sites are password protected, and perhaps the owners of those sites would not like to give Australian government agencies the right to access their sites so they can be prohibited.

So it may be necessary to hack the sites, or to fraudulently gain access to their copyrighted material, which contravenes Crimes Act Sect 76 (and elsewhere), which act provides for a jail sentence.

What to do? It's simple: suspend the operation of all Australian criminal law as it applies to the operation of the censorship act. So that's what they did, in Part 8 - Protection from civil and criminal proceedings. What does `Draconian' mean anyway?

What does this legislative provision actually mean? Well, for example, since you might have a password or cryptographic key deemed reasonably necessary to permit the ABA to obtain information, the ABA can hire a consultant to obtain the password by torturing you. Giving Spooks the right to hack.

What is also interesting, in this regard, is the suppressed content of the Australian Government's Walsh Report " Review of Policy relating to Encryption Technologies." The government tried to suppress its contents, including this paragraph, among others which demonstrate the same intent:

1.2.28 The Crimes Act 1914 should be amended to permit the AFP, NCA and ASIO to 'hack' into a nominated computer system to secure access to that system or evidence of an electronic attack on a computer system. (paragraphs 6.2.3; 6.2.22 refer)

People have been wondering why the Australian government would bother trying to legislate to turn back the tide of internet content and have laughed at their ineptitude in writing the legislation. I suggest that the censorship legislation is merely a Trojan horse as cover for the kinds of covert operations spooks have been begging for.

This Trojan horse should be seen in the context of such legislation as NSW Law Enforcement (Controlled Operations) Act 1997 which enables police forces to break the law in order to catch criminals, after a case was lost on appeal to the High Court because the court exercised a judicial discretion to exclude evidence in a case where a criminal offence has been procured by illegal conduct on the part of police.

Can someone provide details on Australia's legal system? I.e. does Australia have a constitution (I know England hasn't) and a constitutional court which might provide a means of getting this law killed?

Australia does have a constitution, but it doesn't guarantee freedom of speech (it just sets down the structure of government), although the High Court has ruled that there is an implied right of freedom of political speech.

AustLII has information about Australian Courts if you're interested in looking. I'm not a lawyer, but I don't know of anything that would make this law invalid.