OK, this whole patent thing is getting ridiculous.
I've seen a patent for a "device for amusing a cat" - that consisted of one of those laser-pointer things that are so annoying when people have them at movies (you know, the ones that produce a red dot on the screen).
Thank you jason soon for pointing out this one - a US Patent for a stick. That is, an "apparatus for use as a toy by an animal, for example a dog, to either fetch carry or chew includes a main section with at least one protrusion extending therefrom that resembles a branch in appearance."
The patent is number 6,360,693, granted to Ross Eugene Long III. (put the number in here to find it)
Granted March 2002.
Oh, please.

 
Update on US Bill to allow Copyright Owners to Disrupt/Hack P2P Networks
I have blogged on this bill a bit. In an unfortunate twist, over the weekend, apparently, the RIAA's web site fell victim to a Denial of Service Attack. After they came out in support of this bill, which would allow copyright holders to disrupt P2P networks.
Someone's laughing.

 
Update on the Sony Case - Sony lobs a few at Fels - with an aside on the question: how effective is the 'right' to make back-up copies of computer software?
In the Sony case, on Friday, the Federal Court (Sackville J) decided for some pretty technical legal reasons that mod-chipping does not breach copyright law provisions on anti-circumvention devices (I blogged this in some detail Friday, giving my summary of the case).
ACCC chairman Allan Fels hailed the decision, which effectively gives a green light to mod-chipping, as a victory for Australian consumers. PlayStation owners "can now enjoy games legitimately bought overseas, as well as authorised backup copies, by legally having their games consoles chipped," Professor Fels said.
No wonder Sony aren't happy. The Australian reports today that Sony has accused the ACCC of promoting piracy by spreading "misleading" information about the price of PlayStation games. "The case is all about piracy, it's not about overseas games," he said. "The ACCC by its incorrect and inaccurate information on pricing ... is promoting the growth of piracy."
Sony also said that there is 'no such thing' as an 'authorised back-up copy' of a Playstation game. Looking at the legislation, you know, they might be right. Our 'right' to make back-up copies under s47C of the Copyright Act is pretty limited. Specifically, s47C(4) says that the 'right' doesn't apply 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". So that would mean the issue was what is included in the program. I guess if you include in the definition of "program" the data, that (according to the Court judgment in Sony) that doesn't get included when a copy of the Playstation original is made (which is how their protective mechanisms work) - then you can't copy 'the program' without modifying it, therefore no right to make back-up copies. Which just emphasises how easy it is for copyright owners to make sure there is no "right" to make back-up copies, despite the purported protective s47H, which is supposed to make agreements nullifying s47C void.

FURTHER UPDATE: zem has blogged a Bill in the United States which would prohibit "doctoring authentication marks, including watermarks in digital media. Previous IP bills have concentrated on banning devices that circumvent copy protection; this one would prohibit unauthorized playback devices".

 
Congressional Clout of the RIAA?
One question I've been asked: how much Congressional clout do the RIAA have? This is of course relevant to the question - will nasty legislation I blogged last week pass? Good question.
Certainly the recording industry, like other entertainment industry groupings, don't stint on the political donations: see the tables at the Center for Responsive Politics - a good site, by the way.

They appear to be reasonably powerful, at least in the past: the Digital Millennium Copyright Act is a good example of legislation that was passed very much at the prompting of the entertainment industries. They gain some power from the fact that the copyright industries do contribute significantly to the US economy, and also from the basic collective action problem (a la Mancur Olson) - the entertainment industries, which stand to gain from such legislation, are concentrated and as a result are powerful lobbyists while the interests most affected by such legislation tend to be more dispersed and less powerful.
On the other hand, this legislation might well be different. There have been hearings in the Senate Committees on similar legislation (the Consumer Broadband and Digital Television Promotion Act (CBDTPA) (see the Electronic Frontier Foundation site on this legislation), and at those hearings, the makers of computers/consumer electronics have occasionally spoken out against such legislation that will constrict what consumers can do with their "stuff". This may well be a situation where, unlike with things like the DMCA, there are powerful interests opposed to the legislation. Some have also argued that in the wake of September 11, people are less concerned with the protection of Mickey Mouse.

Then again, it may be that to sell fancier and fancier (and more and more powerful) consumer electronics, and computers, the computer/electronics industry needs applications that need speed/power. Most such will require copyright content (movies, music etc). So they do have incentives to cooperate with the copyright industry....

 
Mod Chips Don’t Breach the Anti-Circumvention Provisions in Australia!
[UPDATE: abc news story]
[UPDATE Monday 29 July: The Australian reports that Sony is considering appealing.]

Sackville J has handed down his decision in the Sony case. The defendant sold and installed “mod chips” that allow unauthorized copies of Sony Playstation games to be played on modified Playstation consoles. Normally a Playstation looks for an “access code” that is only found on authorized copies. The mod chip makes the playstation ignore the absence of that code.

The Short Short summary: Sackville J in the Federal Court has found that selling mod chips does not breach the anticircumvention provisions in the Copyright Act, but selling the unauthorized games did infringe trademarks.

Now for the more detailed legal bit:
The copyright aspect of the case is the most interesting. We have 3 important developments:
First, Sackville J mirrors Jacob J’s reasoning in the English case Sony Computer Entertainment v Owen [2002] EWHC 45, in finding that “technological protection measures” need not be solely designed to protect from copyright infringement. Not so very surprising.
Second, Sackville J considers – and rejects - an argument that when the act refers to a Technological Protection Measure (TPM) as one designed to “prevent or inhibit infringement” it includes mechanisms that have the practical effect of deterring of discouraging copyright – like the protections in the Sony machines that are supposed to make unauthorized games unplayable, but which don’t, themselves, physically stop you copying the disks with the games on them.
Thus on Sackville’s interpretation, something is only a TPM if, by its operation, it physically prevents or inhibits the person from undertaking acts which, if carried out, would or might infringe copyright in the work. My gut reaction to that is - it seems right. Once you start to talk ‘deterrence’, or ‘disincentives’, it opens up a big grey area. I’ll have to think about it.
Third, Sackville J finds that playing an unauthorized copy of a game is not an infringement. This is because, while a copy of a substantial part of the computer program is made, that is not a copy in material form, because, with Sony Playstation Consoles designed the way they are, you cannot reproduce the computer program from the RAM. Under section 10, a copy is in “material form” if the work can be reproduced from that copy.

RESULT: the access codes don’t prevent copyright infringement, so are not TPMs. Therefore no breach of s116A.

The upshot? Appeal I guess. Or Sony redesigns its playstations so that the computer program can be reproduced from RAM (not likely to be a popular option). OR Sony find a way to change their system so that the SAME device (access code, etc) puts a technological obstacle BOTH in the way of COPYING the disk, AND playing unauthorized copies in their consoles.

ANOTHER UPDATE: I guess this means, if access controls are only TPMs if they physically stop some action which is or might be infringement (judgment, paragraph 115), then it's a TPM only, in most cases, where making a RAM copy is infringement; which means we are talking about access control measures pertaining to PCs, since none of the peripheral devices like DVDs or CD players or playstations have that capacity to "reproduce from RAM". Unless you are talking about a visual image (artwork)...? It's hard to think of many non-Personal Computer examples of access controls, on this reasoning, which are TPMs....

 
Panel Case and Phone Book case to the High Court?
Rumours that both cases will be seeking special leave later this year. What a wonderful opportunity for some real guidance from the High Court on copyright law....

 
Trade marks and domain names
Some action in Canada: an Ontario court issued a judgment involving the domain name Canadian.biz, overruling a domain name dispute resolution decision that had called for the transfer of the domain from the original registrant to Molson Breweries.

Good to see a dampener put on the STOP actions which have a rather alarming tendency to give trade mark owners undreamed of broad rights in trade marks when it comes to domain names. As Michael Geist points out in his globeandmail column, panelists have gone a little wild, ordering the transfer of generic sounding domains like airport.biz, brands.biz, huge.biz, monopoly.biz (oh, I do like the irony of that one), paint.biz, parents.biz, switchboard.biz and taxman.biz, as well as Ottawa.biz (transferred to the company that owns a trade mark in the word Ottawa in connection with truck tractors. A Texas company. the fact that Ottawa also happens to be the capital of Canada was apparently irrelevant).

Three cheers then for the judge that said "simply because a domain name is identical or similar to a trademark name should not result in the transfer of the domain name to the trademark owner. In my view, unless there is some evidence that the use of the domain name infringes on the use of the trademark name, a person other than the owner of the trademark should be able to continue to use the domain name."

 
And in other copyright news: another bill introduced in Congress
This is the nasty one I blogged yesterday: - here's a description:

"the measure would permit copyright holders to perform nearly unchecked electronic hacking if they have 'reasonable basis' to believe that piracy is taking place. ... The legislation would immunize groups such as the Motion Picture Association of America and the Recording Industry Association of America from all state and federal laws if they disable, block or otherwise impair a 'publicly accessible peer-to-peer network.' Anyone whose computer was damaged in the process must receive the permission of the US attorney general before filing a lawsuit, and a suit could be filed only if the actual monetary loss was more than $250.

Declan McCullagh has a story with links etc here.
EXCUSE ME??? Since most peer-to-peer networks involve users, not just in the United States, but in any number of other countries (say, important allies like the United Kingdom, or mere dots at the other end of the Universe like Australia), what about all the damage that occurs to their computers??? Would we need permission of the US Attorney General? And how exactly would we be supposed to get that?
Good luck to anyone who tries to use such a law to attack, and then gets sued somewhere else.....

[UPDATE: The RIAA have described the legislation as "an innovative approach to combating the serious problem of Internet piracy", and said that the law "makes sense" in an environment which is "dangerously one-sided, with the peer-to-peer pirates enjoying an unfair advantage."]

 
German court uses database directive to block linking
Wired reports that a German court has ruled that Newsclub, a news search service, is violating the EU Database Directive by searching through and linking directly to content found on a German newspaper Web site. ouch. I've always thought that the Database Directive would end up being more than we might have bargained for...

 
New DMCA lawsuit launched by the American Civil Liberties Union
The 2600.com case (Universal Studios v Reimerdes; later Universal Studios v Corley) was just too unsympathetic for the courts. It's really hard to launch a constitutional attack on an important law - the Digital Millennium Copyright Act 1998 which makes it illegal to circumvent technological protections on copyright works, or even distribute the means to circumvent - where your oppressed defendant is a hacker whose site includes a newsletter "The Hacker Quarterly" (?) with articles on how to breach security systems.
So recently we saw the withdrawing of further appeals in the 2600.com case.
And now we have a new launch. The plaintiff in this case is Ben Edelman - a 22 year old programmer who's researching software, in particular, Internet filtering software. The idea is that the "socially beneficial act of critiquing software that is frequently used in public schools and libraries" provides better basis for attacking the constitutionality of the software.
Mind you, being a sympathetic individual did not help Professor Edward Felten when he sought a declaration after being threatened with suit under the DMCA - there, of course, the "alleged" threateners backed off after the suit was brought, and the judge decided the whole issue was moot. It will be really interesting to see what happens. I haven't seen the pleadings so I'm not sure of the parameters of the action.
It's a really big call to say that Congress doesn't have the power to make this kind of law to protect copyright - given the well-known exchange of copyright materials online, and the "limits" inbuilt in the DMCA (which are VERY limited of course, but may be enough for a court to hang it's hat on). I suppose one thing that could be hoped for is some clarification of the 'researcher' provisions in the DMCA. I wish them all the best.

 
The Internet Defamation everyone forgot about - is back...
Macquarie Bank v Berg attracted a lot of (at least academic) attention when in 1999 Justice Simpson refused to issue an injunction against an ex-employee of Macquarie Bank, Charles Berg, in relation to material posted on a United States website, alleged to be defamatory of the Bank.
The Sydney Morning Herald has an article on the case today. It's been alleged that Macquarie Bank's decision to bring a defamation action is an abuse of process, and seeks to impose costs on the ex-employee who in another action is seeking compensation in the NSW Industrial Relations Commission under the unfair contracts provisions.

[UPDATE: zem has followed this up on his weblog, and found an incomplete version of the original website].

 
"We're here to defend intellectual property. If you want balance, go to another session"
What a wonderful quote. It comes from Jim DeLong, an economist at the Competitive Enterprise Institute, and was made at an intellectual property conference.

On the discussion table: legislation that would allow aggrieved content owners to launch technological attacks against file-swapping networks where their wares are traded. Since when was it a good idea for the law to condone vigilantism of that kind? Surely, even if you accept that technological attacks are a good idea - which I emphatically do not - why advocate that content owners have that power, rather than a government body - you know, like say, the police who we usually give such powers to? Not that I think they would do it any better or in a more balanced way. That's just an aside - I'm against it on the whole. But a law to encourage technological vigilantism? Presumably without prior review in any way of the action to be taken? You're right - if you want balance, go to another session!

The other two proposals from the MPAA? Law that will seek to limit piracy by outlawing future components that receive digital TV broadcasts unless they follow anti-copying standards (a similar 'broadcast flag' idea has been endorsed by the Recording Industry Association of America). So, copyright owners could designate material as protected, and the equipment would recognise that designation and respect it. The idea is to have law to compel such flags/watermarks - because hardware/software producers won't do it unless forced.

Some kind of accommodation is going to reached eventually. Surely wholesale copying/distribution Napster-style isn't the long term answer, and isn't long-term acceptable. By the same token, surely it can't be a forced legislative type approach which will provide sustainable answers? Surely there's an issue here about changing business models to make it more attractive to 'respect copyright' or at least pay? And surely there's also a need to accept some "leakage"? And some really fair fair use/fair dealing? I'm sounding here like a "can't everyone just get along" broken record here. that's not the intention - just a recognition that accommodation by copyright owners could do wonders. Building nasty barbed wire or razor wire fences creates a challenge. As some Australian politicians concerned with refugee issues are well aware....

 
Web Filtering
Harvard's Jonathan Zittrain has a couple of interesting pieces on web filtering and the effect it is having/may have in breaking up the seamless end-to-end internet into "cantons": there's a general piece at CNET News.com, and an interesting study that he and Ben Edelman did on what sites are blocked in Saudi Arabia (as of May 2002).
The study is a bit of an eye-opener: sites blocked include health sites, educational sites such as the Women in American History section of Encyclopedia Britannica Online, sites perceived as hostile to Saudi Arabia (including Amnesty International pages), and other pages about Middle Eastern Politics. Also notable among the blocked were the proxy servers of services like anonymizer.com and megaproxy.com - that allow circumvention of blocking through anonymizing (and de-nationalising!) the surfer.
That's the negative of filtering. On the other hand, of course, there are some important questions raised here from the other side. Do countries have no legitimate interest in upholding certain value - such as, for example, values against racism or racial hate speech? If a country has chosen, for whatever reasons, to take a stand against, say, Holocaust denial or against extreme racism, might it not have some legitimate interest in countering those who seek to promote such views across borders via the "seamless end-to-end" internet? Cannot a democratically elected Parliament (say, in France, to hark back to the Yahoo! case) make that decision? (see here Joel Reidenberg's much more extensive argument along these lines - "The Democratization of the Internet" - available at his website here).

 
Copyright and Freedom of Speech - the arguments become trendy in Australia
Ever since Nimmer's 1970s article on the accommodation between copyright and freedom of speech, taken up in the US Supreme Court decision of Harper & Row v Nation Enterprises, the accommodation between the First Amendment and Copyright Law has been one of those ongoing, simmering debates in US copyright jurisprudence. More recently, it's come to the fore again with arguments against the DMCA (as raised in the 2600.com/DeCSS case - Universal City Studios v Reimerdes), and cases like the "Gone with the Wind" case - Suntrust v Houghton Mifflin (about Alice Randall's rewrite of the famous novel - The Wind Done Gone). There is, of course, a well-established industry in such arguments in United States academia (see the work of Neil Netanel, Yochai Benkler and others; or look at the Electronic Frontiers Foundation site for more on this).

England, too has seen a rise in such arguments with such cases over the last couple of years as the Ashdown case in the UK Court of Appeal (seeking to prevent publication of a memorandum of a meeting between Tony Blair and Liberal leader Paddy Ashdown - using copyright law). Such arguments have been fueled, of course, by the Human Rights Act 2000 (UK) which gives a certain air of legitimacy to raising such arguments in court.

So why the sudden obsession with such arguments here in Australia? The newly-established Intellectual Property Research Institute of Australia (www.ipria.org) have a seminar running this Thursday in Sydney on the issue, and the Law Council/Copyright Society of Australia have got into the act with two upcoming seminars in early August. Could it be that we are newly debating the benefits of applying copyright law as strong as anywhere in the world, without a clear counterweight in the form of a First Amendment or Human Rights Act? Or perhaps, becoming aware of the need to think about how fair dealing defences are going, in light of recent, highly confused and guide-lacking efforts by the Federal Court (I refer, of course, to the Panel decision). One can't help but suspect that such arguments don't go very far unless fair dealing defences are broadened or made open-ended.

Such discussions also form a rather interesting contrast with the recent publication of the Law and Economics perspective of David Lindsay (blogged a couple of weeks ago by me, and available at www.copyright.com.au)

 
More on Palladium
I noted the other day that I didn't really understand Palladium. Ross Anderson, of the Cambridge Computer Laboratory, has a great FAQ on his site. It goes in some detail into the Palladium plans, and the Trusted Computing Platform Alliance.

 
Internet Intermediaries
Students of the relationship between the Internet and the Law might want to have a look at Michael Geist's short sharp piece (available from the globe technology page here) in the Globe & Mail on the "new" intermediaries specifically, search engines and financial intermediaries (like credit card providers). Look to these intermediaries as the new targets for litigation by those wanting to control the information up on the Net. Not new but some good examples...

 
Thoughtful speech: Cynicism, the Net, and Copyright
Siva Vaidhyanathan (media scholar and author of Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity (2001)) gave a thoughtful seminar in June through openDemocracy, positing cyberspace as "the ethereal realisation of cynical politics"; the embodiment of "radical freedom" (personified by Richard Stallman). The antithesis of this is, perhaps unsurprisingly, Jack Valenti of the MPAA - cynical in the destructive, and hypocritical sense - arguing copyright ethics and balance as he and his clients abandon copyright law in favour of technocracy. It's an interesting piece, and nicely highlights the hypocrisy of the posturing of some copyright industries (vaunting success while clamouring for more protection; complaining of others' abandonment of the copyright social contract even as they, in reality, abandon it themselves).

 
Update on Hactivismo story
Hactivismo have apparently released steganography software to the world and in particular, aimed at human rights activists and the like in repressive countries. They are also projecting releasing software that will enable the creation of virtual private networks (VPNs) for the exchange of information etc without government surveillance. I mentioned this story yesterday; i've now found a more detailed article on the story in the Canadian Globe & Mail. For some reason however I'm unable to access the hactivismo site at the moment ... conspiracy theories abound....

 
Microsoft's Palladium
There's a lot of talk around at the moment about Palladium, the initiative that Microsoft announced in June, that proposes the use of public key infrastructure and cryptography to make the Windows operating system more secure. There's a lot of concern that this will give Microsoft greater control over what programs you do and do not use on your computers. Salon.com has an interesting piece on Palladium that is worth reading for anyone who, like me, tends to have trouble disentangling the hype from the hysteria from the truth ...

 
Another attempt to limit user rights in the US
ZDNet (again, thank you zem) has a story on proposed legislation to limit an exception under US Copyright Law under which Americans who record a TV program or radio segment may "sell or otherwise dispose of" that analog recording or digital file as they wish. Mind you, no such exemption exists in the Australian Act so I can't actually get that excited about it.

 
Protect the ringtones
Oh, this is just too good! Thank you fellow blogger zem for pointing out this New Scientist story about Nokia/IBM developing a standard for protecting ringtones!!! I've always wondered how people managed to reconcile the IP issues/copyright issues in relation to those ring tones, and I guess it was only a matter of time before it turned into a real market.
ah, give me an ordinary ring anyday!!! (or perhaps life without a mobile phone? nah, that would be too extreme).
Cheery funny story for a monday.....

 
Human Rights Dream or Terrorist Nightmare?
US News sources are reporting that the international hacker group Hactivismo released a program on Saturday called Camera/Shy that allows Internet users to conceal messages inside photos posted on the Web, bypassing most known police monitoring methods. There is also a claim that other technology is being developed which if adopted widely could allow anyone to create grassroots, anonymous networks where Internet users worldwide could access and share information without a trace.Steganography has been discussed as a possible terrorist tool for ages.
Sounds like another case of "guns don't kill people, people kill people" reasoning. Wide use of this stuff could be very scary, although admittedly I don't have the foggiest how you limit this stuff; or how to answer the argument that criminals/terrorists can get the software (or develop it) themselves. One thing is sure - it's raised the profile of steganography again...

 
It has been pointed out to me that I have not updated recently. True, true, true. There are two reasons: first, I am marking exams and essays. Ah, the academic life. Second, I haven't really picked up any news in particular that has been so striking that I couldn't resist blogging it. So, if any visitors happen to have anything in the ip/it/tp world that I'd be interested in, do let me know!

 
EFF/2600 drop Supreme Court Appeal in DeCSS case
Wisely, the EFF and 2600 have announced that they will not be appealing the decision of the 2nd Circuit Court of Appeals in the DeCSS case - where the court rejected arguments that the Digital Millennium Copyright Act (DMCA) was unconstitutional on the basis of the First Amendment (among other arguments). The comments on the 2600 site are more candid - noting the fact that they couldn't really expect to win, and that a loss in the Supreme Court would be damaging for the case against the DMCA. Far better to choose a more "appealing" (no pun intended) defendant.

 
David Lindsay Paper: Law and Economics of Copyright and Mass Market Licenses
The Centre for Copyright Studies has released a paper by David Lindsay (a research fellow at the University of Melbourne) on the Law and Economics of mass market licenses in copyright. The paper goes to the heart of that issue that the CLRC are looking at - the relationship between copyright and contract - which is so important online. I haven't had time to digest the 124 page document yet, but the conclusion suggests that Lindsay:

- attacks the idea of copyright law as attempting to "balance" the interests of users and copyright owners: and that, instead, what is sought is the proper accommodation between the benefits and costs of the copyright system: here he appears to build on the fairly classic analysis of property in recent law and economics literature;
- supports exceptions based on non-economic social policy concerns, but only where narrowly directed to the particular (and clearly identified) social policy;
- suggests that mass market contracts should not be banned or restricted - particularly they should not be restricted by limitations within copyright law, but
- that policy-makers should look, instead, at changes that may need to be made in the area of consumer protection law and competition (antitrust) law.
(btw: this summary does not purport to be complete!)

I agree that the consumer protection/competition laws are very important here. The paper looks extremely interesting, and will no doubt be important to anyone interested in this debate and in the current work of the CLRC. With the rise of the online music (and their extraordinarily complex contractual terms - see eg www.pressplay.com), these are live issues indeed, and this is a timely paper. With any luck it will also contribute to ensuring that any guidelines on IP that the ACCC issue will focus on copyright as well as the usual focus - which is patent. Readers interested in this might also care to have a look at the recent FTC-DOJ hearings on the IP-Antitrust nexus - as well as the IPCRC report.

 
Australian Spam Case Update
Joseph McNicol has been used for getting T3 Direct black-listed on an anti-spam website (www.SPEWS.org). The Australian reports that the damages being claimed has doubled to A$82,000. ouch.

 
The nexus between intellectual property and competition (and computer technology)
New York Times (registration required) has an interesting story by Hal Varian, author of Information Rules (and numerous other amazingly readable economics thingies) this morning about the use of technology (chips) to control behaviour of consumers, especially in after-markets. So they talk about chips in printers that won't operate if the print cartridge has been refilled; chips in mobile phones that refuse to work if the battery is the wrong type. They rightly highlight the effect on innovation of this kind of behaviour. More proof that the competition/ip (antitrust/ip) nexus hasn't been worked out yet. Yup,
"too much control can be a bad thing, particularly when innovation is a critical source of competitive advantage"

 
I've updated the ARIA/Personal Computer Magazine issue below (broad assertions of copyright and their effect)

 
Open source fatigue?
Sometimes it's hard to find much skeptical commentary on open source software. There's reasons for that - first that some of the programs are great; second that the internet is peopled with programmers and others who want, need, desire to write their own software.
I'm indebted then to Scott Wickstein for pointing out this skeptics view by Arnold Kling.
I have to say though - is there anything really wrong with open source zealotry? People are entitled to be enthusiastic about their own personal passions and hobbies. My own view is - let them evangelize (some people may thus find their calling); let them create - one day I might be using their software! And make sure that intellectual property laws don't stifle their creative urges.

 
Now silence can be copyrighted? Everybody - don't perform silence in public, now....
America's National Public Radio on 2 July reported an extremely strange copyright case: below I quote their site:

"Robert speaks with British composer and music producer Mike Batt, who is accused of copyright infringement for a 60-second track of silence that allegedly resembles John Cage's famous silent piece 4 Minutes 33 Seconds"

Apparently, the mechanical collecting society in the UK has written to Batt, saying it was planning to uphold a claim that the 60 seconds of silence is a "quote" or copy of John Cage's piece - which, by the way, consists of sixty seconds of complete silence. Batt called his "piece", recorded on his CD and which serves as a break between two different sections of his CD, "sixty seconds".
Now I'm wondering whether, if I'm quiet too long, that's a problem. Maybe its only a problem if I decide to "record" and "sell" my silence. What about when I lecture - arguably I quite often "perform" "silence". All I can say is, this looks a helluva lot like trying to copyright an "idea" - rather than an "expression". That just can't be right. Maybe they should have tried "passing off". Grow a sense of humour, people. (another point - what if Batt recorded 6 minutes of silence?).

 
ARIA - the new RIAA?
An email sent to the Electronic Frontiers Australia list reports that in the May 2002 edition of Australian Personal Computer magazine,
"the official position of the Australian Recording Industry Association (ARIA) is that all downloading of MP3s without the express permission of the copyright holder is illegal". This apparently includes "complete and partial versions as well as remixes containing large samples of protected sound recordings";
The official statement goes on:

"It is illegal to make a copy of any sound recording for any purpose without the appropriate license and payment of applicable fees. Therefore it is illegal for a person to 'rip' CDs and encoded to a compressed format, even if the person owns the CD."

See the story in Personal computer magazine here. As was pointed out in the EFA list email, this would seem to suggest there is no such thing as fair dealing. A little harsh, perhaps. Awaiting confirmation - or clarification - from ARIA as to their official position. It does illustrate the real difficulty in stating the overly complex copyright law in terms simple enough to be compelling and easy to understand, but still accurate. Fair dealing is not an easy doctrine to actually describe. But this sort of broad general statement, one might suggest, would be unhelpful, and is not likely to make copyright users (ie the rest of us non-megastars) feel any more warm and fuzzy towards copyright law and its enforcers.

UPDATE:
It's true, of course, that in Australia the fair dealing defences are less fulsome, and less flexible, than the fair use defence in the United States. And it is true, also, that we don't have a case equivalent to the Sony Betamax decision in the states, which held that "time shifting" (tape recording broadcasts to watch later) was fair use.
I have three comments:
- first, it shows that the copyright law is too complex to put simply, and convey effectively;
- second, the statement in the Magazine is still too broad, since it denies ANY fair dealing (which might include research/study by an individual); and
- third, this is evidence of the danger, in Australia, of having US-strength copyright rights (especially the technology-neutral rights, like the right to communicate works to the public) without US-strength copyright defences or a constitutional right to free speech.
Truth is, however, I'm more worried about the application of these laws in areas other than music. I don't condone wholesale copying and CD-burning. It's just not right on any metric. Artists have a right to be paid and we don't need the wholesale tearing down of the recording industry. I think it serves a valuable purpose, and I think copyright protection of songs is really important. On the other hand, I don't think these kinds of broad assertions of right are helpful to the debate, or, indeed, to the business of the recording industry which does need to maintain relationships with customers. See Kathy Bowrey's piece in CyberLawRes on this point.

 
ICANN - time to go?
John Gilmore has done a thoughtful interview, featured in Salon.com. If you want the background on all this; with some good personality commentary thrown in, I recommend the piece.

 
Random death penalty rant
So, a New York judge has noticed the fact that DNA incidents have put the lie to the idea that only guilty people suffer the death penalty in the US, and has ruled it unconstitutional. Welcome to the real world.

 
auDA chaos
auDA commences operations, with the - surely not unexpected - chaos. Radio/newspapers seem to be making a bit of a deal of this, but anyone who has ever put in a new computer system would expect a bit of this. Overall, we don't have a lot to complain about here in Australia when it comes to domain name registration - compared to the cybersquatting chaos in other countries (leading to litigation, not just a bit of delay), or countries still struggling to get control over their own ccTLD.

 
Schools Vouchers decision
George W. has apparently labelled the decision of the Supreme Court upholding the schools vouchers system (where people get vouchers for education that they can use at schools of their choice - including religious schools) as "just as historic" as Brown v Board of Education. not quite, dubya. not quite. although it will no doubt engender an avalanche of law review articles.

 
ICANN adopts overhaul...
Well, so ICANN has decided to move forward with its re-organization. Probably something like this was inevitable. But more interesting are the claims reported on ICANNWatch that appear to suggest that ICANN doesn't have to be open/transparent/accountable in its structure, because it is a private body. According to Stuart Lynn, according to ICANN Watch (don't you just love hearsay): "Because ICANN is a private body, we can structure it any way we want. Our belief is that the restructuring and the other items in the blueprint create a much more effective ICANN".

 
When will pundits get sick of the "wild west" metaphors?
Yes, once again the domain name industry has been referred to as the "wild west". This has to go down with "piracy", "cyberpiracy" and "cybersquatting" as one of those wonderful examples of evocative language used to little apparent purpose other than the rhetorical purposes of certain industry bodies. Besides, it is notable that the Australian 'domain name industry', such as it is, has always tended more to the picket fence than the wild west, given the fairly stringent rules on registration of the ".com.au" addresses. If anything, the rules regarding registration are becoming less, rather than more strict. And about time too.