I think your question is really about burden of proof in a copyright case.
Although it's evident that C can't successfully sue anyone, for anything because C is NOT the holder of the copyright (B is) ; that may not be evident at the outset.
actually, I just thought the decision in Gutnick did make perfect sense.
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 !
Why do people on/. continue to think that it's OK to copy entire articles ?
It's not OK. It's not stealing, or theft or any other verb like that ; those are emotive words that also don't acurately reflect what has happened.
What has happened is copyright infringment ; an unlawful act.
The NY Times creates this content, it has to pay a writer, support a webserver, pay bandwidth bills.
In return, for creating this content for u to read, all they ask is that u look at some ads.
I think that's a reasonable exchange, that I agreed to. If you don't think it's reasonable, then you shouldn't break the law to allow others to circumvent it.
Not quite, that's another question to the one I raised. I agree with you in that Microsoft have never used this patent offensively, but do you remember they DID try with the FAT patent ???
The real problem/question I wanted to raise is with obvious extensions to prior art being patentable. (see my original post)
Finally, there is ~14 years left to run on this patent. A lot can happen in that time.. I wouldn't discount the possibility of Microsoft beginning to
enforce their patents, and hence derive significant revenue if the rest of their business model begins to suffer from the encoachment of open source software.
Companies are not "good", they just have interests (that of thier shareholders) to serve.
Enforcing a patent portfolio is inevitable for companies. It's just in the nature of the beast.
sorry to ruin the party, but this SBC patent was basically invalidated by invoking the prior art of another patent , assigned to Micro$oft, applied for in 1995.
which has the catchy title Method and system for displaying internet shortcut icons on the desktop and yes, from a quick look, it's every bit as obvious as it sounds.
Now, I assume Apple and Sun have taken out licences (or swapped some other IP) for the right to use this patent, but how about :
- KDE ?
- Gnome ?
- you ? - yes, YOU the/.'er right there running distro "X" with icons on your desktop pointing to URL's in VLAGRANT violation of:
2. The method of claim 1 wherein the display of the visual representation of the shortcut object on the virtual desktop includes a graphic for identifying the shortcut object as a shortcut to the resource.
Does anyone else despair of this patent madness, where this rather obvious extension i.e icons pointing to an INTERNET resource is considered patentable, as it's such a VAST improvement (yeah right) over the basic icon to LOCAL resource ?
eg, the Apple Mac in 1984, 1983 Lisa, even earlier Xerox Star etc etc...all had icons - right ?
maybe not..
you have suggested that he *downloaded*, the pictures. This may be significantly different to simply *viewing* the pictures.
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.
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 ?
1. The open-ended fair use exception is broader in scope than the Australian fair dealing exceptions, which are restricted to specific purposes.
2. The fair use exception is technologically neutral and does not require revision through legislation.
(I would think that the benefits of both these facts is obvious to all.)
From me:
1. Greater harmony with USA laws is appropriate because of the FTA
2. '('time-shifting') is a fair use (Sony Corporation v Universal City Studios 464 USC 417 (1984, S.C ('Betamax decision'). ' this is NOT the case in Australia.
IMHO it should be.
3. a more harmonised legal environment will allow the better funded USA EFF to fight the good fight in the USA, and we can then reap the downstream benefits in Australia. (sorry about the self interest)
4. Law should be a reflection of how people think society should be ordered. The vast majority of Australians think that they can :
- record TV on their VCR's
- move music from CD to MP3
the current Australian law is not in harmony with these views, and as such Australians are commiting technical breaches of the law every day, mostly unwittingly. And the AG says so in the intro page.
This is wrong, as law should serve the people, not the corporations.
Now I need to go and read that paper in depth, but that's my first thoughts.:-)
With respect, I didn't forget, and neither did the Australian High Court. The defamer was NOT Australian, NOR was the server located in Australia ; so says the Australian High Court:
# Dow Jones has its editorial offices for Barron's, Barron's Online and WSJ.com in the city of New York. Material for publication in Barron's or Barron's Online, once prepared by its author, is transferred to a computer located in the editorial offices in New York city. From there it is transferred either directly to computers at Dow Jones's premises at South Brunswick, New Jersey, or via an intermediate site operated by Dow Jones at Harborside, New Jersey. It is then loaded onto six servers maintained by Dow Jones at its South Brunswick premises.
Gutnick claimed that he was defamed , where it mattered to him, Melbourne Australia.
The Australian High court agreed with him, and said that it had jurisdiction, because the the place of the wrong was Australia.
This is why this is a landmark, precedent setting case for disputes where one party is claiming jurisdiction because of a percieved wrong performed half a world away over the Internet.
The good news for PGA, is that following the principles from this case, Gutnick agreed to limit his claim to damage caused in Australia. Importantly, in the proceedings before the primary judge the respondent confined his claim to the recovery of damages and the vindication of his reputation in Victoria. He also undertook not to bring proceedings in any other place.
So, if GWTW brings and action in Australia, then they could presumably only claim Australian copyright infringment damages, and not worldwide damages.
In this landmark case testing the limits of legal jurisdiction in the Internet age, Australia's highest court clearly said that the harm was done to the Australian person defamed, despite and regardless that the material was hosted on a foreign server.
So, as Australians, we can't then turn around and say that just because it's hosted on servers in Australia, that the harm done is irrelevant to the Americans IP owners
This is a logical analysis, that doesn't take into account the very dubious merits of the Sony Bono Act. (IMHO)
Regardless of wether we personally like a law, the courts will attempt to maintain coherence of legal principle.
In this case, reducing it to mathematics ;
IF (hosted overseas) AND (harm done in Australia) = within Australian jurisdiction
then the converse must be true...
IF (hosted in Australia ) AND (harm done overseas) = within overseas jurisdiction
If the GWTW party sues and this goes to court, I would expect them to argue the jurisdictional question on the basis of Australian law, and not the merits of Sony Bono.
This way they can bring the case in Australia, seek Australian remedies, and neatly sidestep the international jurisdictional questions.
The law is a bit contradictory to this fact sheet, as this clause indicates.. it is legal to make copies of
tv broadcasts for private or domestic use..
COPYRIGHT
ACT 1968 , SECT 111
Filming or recording broadcasts for private and domestic use
(1) 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.
So, maybe it's only OK to copy a tv show without sound ?
I can't believe that on/. of all places that this topic hasn't given rise to a discussion about standards based vs proprietary....
It's simple, with Skype, you are replacing one monopolopy (the telco) with Skype, and selling your VoIP soul by buying into their proprietary world.
If you use SIP, you are building a common user base of like minded people who believe open standards are good things.
C'mon people, have we learnt NOTHING from the IM "wars" - what should have prevailed was an open IM standard - and what do we have ??
3 or proprietary camps - each trying to steal users from the other, each inoperable unless you jump through technological hoops to have 3 or 4 different IM protocols running concurrently..
Why contribute to Skype's cathedral, when you can be adding to the SIP bazaar ??
The entry to to the Skype domain may be free, but the key point is not to be free, as in beer, it's about being free as in speech (and standards...)
I think that any difference in voice quality, ease of use etc etc are all beside the point, you could have said the same type of thing a few years ago about :
Open Office v MS Office
Windows vs Linux
etc..
remember.. with enough eyballs all bugs are shallow...
this debate should be a non-starter for the/. crowd - go SIP, go open standards, go and be free !!
Slashdot Mirror
Although it's evident that C can't successfully sue anyone, for anything because C is NOT the holder of the copyright (B is) ; that may not be evident at the outset.
In Australian law, the burden of proof as to ownership of a copyright is presumed to rest with the plaintiff (C), unless the the defendant (A) makes it an issue./ PA002330.htm
See : http://scaleplus.law.gov.au/html/pasteact/0/244/0
I would imagine it's the same in the USA ?
INAL, just a law student.t le=Main_Page
http://law.flindersclubs.asn.au/wiki/index.php?ti
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 :6 .html
http://www.austlii.edu.au/au/cases/cth/HCA/2002/5
It's not OK. It's not stealing, or theft or any other verb like that ; those are emotive words that also don't acurately reflect what has happened.
What has happened is copyright infringment ; an unlawful act.
The NY Times creates this content, it has to pay a writer, support a webserver, pay bandwidth bills.
In return, for creating this content for u to read, all they ask is that u look at some ads.
I think that's a reasonable exchange, that I agreed to. If you don't think it's reasonable, then you shouldn't break the law to allow others to circumvent it.
upholding a prior (1995) M$oft patent on icons to URLS's !!
Please see my earlier post, look at the referenced M$oft patent, and THEN reconsider are you *still* high-fiving the PTO ??d =12898180
http://yro.slashdot.org/comments.pl?sid=153768&ci
I think not.
What I can't believe is that on /. this patent ownership by M$oft of frikin' icons to URL's didn't seem to register much.
Hell, the longest thread that descended was about bash scripts... geez.
The real problem/question I wanted to raise is with obvious extensions to prior art being patentable. (see my original post)
Finally, there is ~14 years left to run on this patent. A lot can happen in that time.. I wouldn't discount the possibility of Microsoft beginning to enforce their patents, and hence derive significant revenue if the rest of their business model begins to suffer from the encoachment of open source software.
IBM derive SIGNIFICANT revenue ($US 1.6B in 2000) http://www.wired.com/news/technology/0,1282,43186, 00.html
for thier shareholders by enforcing their patent revenue.
Companies are not "good", they just have interests (that of thier shareholders) to serve.
Enforcing a patent portfolio is inevitable for companies. It's just in the nature of the beast.
But don't take my word for it, how about Eben Moglen, pro bono counsel for the Free Software Foundation_ aiming_ibmscale_patent_program/
http://www.theregister.co.uk/2003/12/08/microsoft
United States Patent 5,877,765 ; Dickman , et al. March 2, 1999T O1&Sect2=HITOFF&d=PALL&p=1&u=/netahtml/srchnum.htm &r=1&f=G&l=50&s1=5,877,765.WKU.&OS=PN/5,877,765&RS =PN/5,877,765
http://patft.uspto.gov/netacgi/nph-Parser?Sect1=P
which has the catchy title Method and system for displaying internet shortcut icons on the desktop
and yes, from a quick look, it's every bit as obvious as it sounds.
Now, I assume Apple and Sun have taken out licences (or swapped some other IP) for the right to use this patent, but how about :
- KDE ? /.'er right there running distro "X" with icons on your desktop pointing to URL's in VLAGRANT violation of :
- Gnome ?
- you ? - yes, YOU the
2. The method of claim 1 wherein the display of the visual representation of the shortcut object on the virtual desktop includes a graphic for identifying the shortcut object as a shortcut to the resource.
Does anyone else despair of this patent madness, where this rather obvious extension i.e icons pointing to an INTERNET resource is considered patentable, as it's such a VAST improvement (yeah right) over the basic icon to LOCAL resource ?
eg, the Apple Mac in 1984, 1983 Lisa, even earlier Xerox Star etc etc...all had icons - right ?
you have suggested that he *downloaded*, the pictures. This may be significantly different to simply *viewing* the pictures.
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./ 1997/1331.html
http://www.austlii.edu.au/au/cases/cth/federal_ct
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/ 1997/1331.html
http://www.austlii.edu.au/au/cases/cth/federal_ct
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.
you used "fiduciary" in a /. post. :-)
you must be a lawyer
moron.
it's Syria, not Cyria. http://en.wikipedia.org/wiki/Syria
Still, nice to see a fellow aussie /.'er reminding the world that they are catching up to our national broadcaster :-)
Without the sponsoship of a major party, this bill will go exactly nowhere.
1. The open-ended fair use exception is broader in scope than the Australian fair dealing exceptions, which are restricted to specific purposes.
2. The fair use exception is technologically neutral and does not require revision through legislation.
(I would think that the benefits of both these facts is obvious to all.) From me:
1. Greater harmony with USA laws is appropriate because of the FTA
2. '('time-shifting') is a fair use (Sony Corporation v Universal City Studios 464 USC 417 (1984, S.C ('Betamax decision'). ' this is NOT the case in Australia.
IMHO it should be.
3. a more harmonised legal environment will allow the better funded USA EFF to fight the good fight in the USA, and we can then reap the downstream benefits in Australia. (sorry about the self interest)
4. Law should be a reflection of how people think society should be ordered. The vast majority of Australians think that they can :
- record TV on their VCR's
- move music from CD to MP3
the current Australian law is not in harmony with these views, and as such Australians are commiting technical breaches of the law every day, mostly unwittingly. And the AG says so in the intro page.
This is wrong, as law should serve the people, not the corporations. :-)
Now I need to go and read that paper in depth, but that's my first thoughts.
How on earth can WP complain about lack of hooks into IE, when the WWW (well, the browser portion) didn't even exist in 1991-1992 !!
And if you do a help/about in IE, it says copyright 1995-2004
The FTA does not require retrospective protection of copyright material already in the public domain. http://www.acuiti.com.au/index.cfm/p/content-04-0
So, GWTW is in the PD in Australia, and will remain that way , despite the forthcoming FTA.
Pity it will lock up content for an additional 20 (25 ?) years , if they are currently still within copyright, even by a day !
The defamer was NOT Australian, NOR was the server located in Australia ; so says the Australian High Court:
# Dow Jones has its editorial offices for Barron's, Barron's Online and WSJ.com in the city of New York. Material for publication in Barron's or Barron's Online, once prepared by its author, is transferred to a computer located in the editorial offices in New York city. From there it is transferred either directly to computers at Dow Jones's premises at South Brunswick, New Jersey, or via an intermediate site operated by Dow Jones at Harborside, New Jersey. It is then loaded onto six servers maintained by Dow Jones at its South Brunswick premises.
Gutnick claimed that he was defamed , where it mattered to him, Melbourne Australia.
The Australian High court agreed with him, and said that it had jurisdiction, because the the place of the wrong was Australia.
This is why this is a landmark, precedent setting case for disputes where one party is claiming jurisdiction because of a percieved wrong performed half a world away over the Internet.
The good news for PGA, is that following the principles from this case, Gutnick agreed to limit his claim to damage caused in Australia.
Importantly, in the proceedings before the primary judge the respondent confined his claim to the recovery of damages and the vindication of his reputation in Victoria. He also undertook not to bring proceedings in any other place.
So, if GWTW brings and action in Australia, then they could presumably only claim Australian copyright infringment damages, and not worldwide damages.
I think ! - INAL .. (just a law student)
In 2002, the Australian High Court in Dow Jones & Company Inc. v Gutnick http://www.austlii.edu.au/au/cases/cth/HCA/2002/56 .html
http://vigilant.tv/article/2544
said that an Australian defamed on a website hosted overseas could sue, and that Australian courts did have jurisdiction.
In this landmark case testing the limits of legal jurisdiction in the Internet age, Australia's highest court clearly said that the harm was done to the Australian person defamed, despite and regardless that the material was hosted on a foreign server.
So, as Australians, we can't then turn around and say that just because it's hosted on servers in Australia, that the harm done is irrelevant to the Americans IP owners
This is a logical analysis, that doesn't take into account the very dubious merits of the Sony Bono Act. (IMHO)
Regardless of wether we personally like a law, the courts will attempt to maintain coherence of legal principle.
In this case, reducing it to mathematics ;
IF (hosted overseas) AND (harm done in Australia) = within Australian jurisdiction
then the converse must be true...
IF (hosted in Australia ) AND (harm done overseas) = within overseas jurisdiction
If the GWTW party sues and this goes to court, I would expect them to argue the jurisdictional question on the basis of Australian law, and not the merits of Sony Bono.
This way they can bring the case in Australia, seek Australian remedies, and neatly sidestep the international jurisdictional questions.
Bugger, hoisted by our own petard !
http://www.elektra.com/hoodoogurus/music/
I also concur with your analysis.
We run an ISP , so we will also wait and see until such time as the IETF standards are unambiguously determined.
How would a Labour government have led to any different outcome ?
Are you saying a that Labour would tear up our extradition treaty with the US ?
I think not.
I think you either didn't think at all b4 posting , or you are ignorant of our system of government , or both.
"I have come to the view that ... Mr Griffiths ought not be deterred from defending the application by the risk of a potential costs order against him.
Actual judgement here : http://www.austlii.edu.au/au/cases/cth/federal_ct/ 2004/879.html
This is in itself an important precedent that will be of benefit to any future Mr Griffith's.
On a different point, why is this considered news ? Justice Jacobson handed down his descion two months ago on July 7th !
The law is a bit contradictory to this fact sheet, as this clause indicates.. it is legal to make copies of tv broadcasts for private or domestic use..
COPYRIGHT ACT 1968 , SECT 111
Filming or recording broadcasts for private and domestic use
(1) 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.
So, maybe it's only OK to copy a tv show without sound ?
lovely retort !! - what a doofus..
It's simple, with Skype, you are replacing one monopolopy (the telco) with Skype, and selling your VoIP soul by buying into their proprietary world. If you use SIP, you are building a common user base of like minded people who believe open standards are good things.
C'mon people, have we learnt NOTHING from the IM "wars" - what should have prevailed was an open IM standard - and what do we have ??
3 or proprietary camps - each trying to steal users from the other, each inoperable unless you jump through technological hoops to have 3 or 4 different IM protocols running concurrently.. Why contribute to Skype's cathedral, when you can be adding to the SIP bazaar ??
The entry to to the Skype domain may be free, but the key point is not to be free, as in beer, it's about being free as in speech (and standards...)
I think that any difference in voice quality, ease of use etc etc are all beside the point, you could have said the same type of thing a few years ago about :
Open Office v MS Office
Windows vs Linux etc ..
remember.. with enough eyballs all bugs are shallow...
this debate should be a non-starter for the /. crowd - go SIP, go open standards, go and be free !!