Is it fair use to take movies, edit out the naughty/offensive stuff, then rent them out?
Miller at Lawmeme has a story on "Cleanflicks" - a small video rental chain which purchases movies on tape, and edits everything its customers are expected to dislike – sex, violence and “bad” language, before renting the movies out to customers (gee, I wonder how much of Saving Private Ryan would be left? Let alone, say, 9 and a half weeks..... I understand they have lots of copies of Shrek. just kidding). Some of those films must be really short.
Does raise a question though - is that allowed?
Doesn't sound like any of our heads of "fair dealing" here in Australia, does it? It's hardly 'reporting of news', nor is it 'for personal research or study', and I very much doubt it is "criticism and review", at least on the extraordinarily narrow view of what constitutes criticism and review here in Australia following the Panel case.
Next question: would it breach the (relatively) recently introduced moral rights provisions? At first blush it looks like "derogatory treatment" - defined in relation to films as "the doing, in relation to the film, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the film that is prejudicial to the maker's honour or reputation". But then it highlights just how strange our definition of "derogatory treatment" is - some would argue it's not prejudicial to the film-makers reputation to have bits cut out by someone else for a small group of viewers - but then, I doubt any film-makers would agree!!!

 
yet another story on the myriad problems of getting all the copyright licenses to distribute music online.
This time in the New York Times.
Favourite quote: "It's as if Franz Kafka designed this system and employed Rube Goldberg as his architect" (from the chairman of MusicNet, the AOL/Time Warner, RealNetworks, EMI and Bertelsmann venture for online music downloads.

 
And another thing...contract terms and copyright - where's that report?
The Copyright Law Review Committee had a reference on the relationship between contract and copyright. The report was sent to the government in April. It hasn't come out yet. What's in it? (or is it just all that Iraq gumpf that is holding everything else up?).
The Australian has a story tody - pointing out all those nasty terms in copyright licenses for software may actually be illegal under Australian law. For at least some cases I've seen, that would have to be right. Funny, isn't it, when law can only continue to "exist" because never enforced? (if a tree falls in the forest, and no one is there to hear it, does it make a sound? If a software writer attaches a license to his software, and never ever enforces it, was it ever really a contract?).
For at least some of the terms, it has to be right that they would be unenforceable and may even breach the Trade Practices Act. Especially since making representations as to legal rights is itself bad under s68A, from memory.
Suggestion: maybe we could do with something like the Unfair Contracts Directive from the EU (or UK regulations that embody it) - so at least there would be some guidance out there on what is unacceptable.
just a thought.

 
And in other, less academic news: the tale of the fearless spam fighter
Got a bit carried away on that last post.
On a less esoteric issue: the Australian newspaper is reporting that an Australian spam fighter is back in court. He is seeking to have an action brought by a spammer, T3 direct, struck out. T3 direct are alleging that spam fighter Joseph McNicol gave T3's "outed" T3's IP details on the internet - leading to their blacklisting by SPEWS and blocking of their emails.
judgment reserved.

 
Antitrust (sorry - anti-competitive conduct) and Copyright

Since late last year we've known that the DOJ had launched an antitrust probe into the Record Industry and the Movie Industry in relation to their ventures for distribution online. Because they are cutting out the middleman and distributing directly to the public online, and because they are creating joint ventures to do it, there's been a lot of concern about the ventures (background article here). Napster at one stage in its litigation (in February 2002) got a judge to allow discovery on the potential misuse of copyright.

Now we have the online distributor of movies - Intertainer - who has brought an antitrust action against the movie studios, alleging that the studios have used their own online movie joint venture, Movielink, to push up the price then demand for licensing their movies to rival online distributors. The Wall Street Journal reported it yesterday, 24 September 2002 (subscription site only).

One of the arguments sometimes raised in favour of expansive interpretations of intellectual property rights is that other areas of law - like consumer protection law; like competition/antitrust law - can impose external restraints on misuse of intellectual property rights, just as they impose constraints on misuse of tangible property. So we can give, the argument goes, strong protection to songs, because if the composers use those rights to batter others over the head, competition law/antitrust can stop them.
On the other hand, the relationship between antitrust and intellectual property is a very uneasy one. Intellectual property owners and lawyers bridle immediately on any mention of "copyright" or "patent" and monopoly in the same sentence ("it's not a monopoly..."), and the caselaw has been quite inconisstent at times. What's more, there's the remedy question - as we saw in the Microsoft case. Competition law remedies aren't always well tailored to intellectual property rights, perhaps because if you order someone to, for example, allow inter-operability you are redefining their property rights - not just telling them how much they can or can't charge for it.

I've long thought the relationship, at least, needs to be argued about - and sure enough, it is in the halls of academia and in conferences organised by the DOJ and FTC. Here in Australia we have the ACCC v Universal case - dealing with questions of misuse of market power in relation to copyright - a case with a particularly controversial interpretation - or rather application - of the concept of market power (boiling down to single songs, to cut a very long story short). We also have the ACCC working on intellectual property licensing guidelines, as I understand.
So, there will be more action. My guess would be we won't work it out in the short term.
watch this space.

 
Should we burn the books?
New York Times has an opinion piece by Nicholas Kristof, suggesting that we ban all those nasties on how to make mustard gas, nerve gases, sarin, etc. He got the books at gun shows (!!!proof, if you ask me, that nuts really do go to gun shows....!!!) and on the Internet. According to the author, while many of the books are "rubbish", they are getting better. And while the author says that "book-burning grates on his soul", his final statement is:

"We have a window now, while terrorists still have difficulty obtaining reliable recipes for bio- and chemical weapons. If we continue to allow these cookbooks to improve, buttressed by helpful articles in professional journals, then over the next 10 years we may empower terrorists to kill us on an unimaginable scale."

Myself, I can't help but think there's some merit in that - and yes, I know that it would never actually succeed in removing such information from the public, and yes, I know that lines are hard to draw - but i'm just having so much trouble identifying any value in having the information out there. anyone?

Miller at Lawmeme claims that it is so wrong on so many levels it is not funny.

 
Australian Court Orders Holocaust Denial Site Down
Justice Branson, in the Federal Court of Australia, has ordered (the judgment is on Austlii - available here) Frederick Toben to remove material from the Web which denied the Holocaust happened, and villified Jewish people. The court found that the material was "reasonably likely, in all of the circumstances, to offend, insult, humiliate and intimidate Jewish Australians or a group of Jewish Australians." The case was so clear that Branson J was able to give summary judgment in the case.
Toben's conduct was held to contravene the Racial Discrimination Act, s18C, which makes it unlawful for a person to do an act, otherwise than in private, if the act:
(a) is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group (here, the court found that Toben had published the material "because of the ethnic origin of Jewish Australians").
Legally, this sounds reasonably clear cut to me, and since Australia has no equivalent to the First Amendment of the United States, or Article 10 of the European Convention on Human Rights, there is no overriding defence - just illustrating how differerent it is when you don't have a bill of rights. Can you imagine a summary judgment (that is, the case is so clear it doesn't even have to go to trial) in many other Western jurisdictions? The Australian Council for Civil Liberties has criticised the decision, saying it would interfere with a person's fundamental right of freedom of speech.

"No matter how stupid and misguided Toben's views are, freedom of speech means the right to be stupid."

This is not the first time Dr Toben has been in trouble - according to Reuters he was jailed in Germany in 1999 for 7 months on charges of inciting hatred through pamphlets, but acquitted on charges about his website by a German court, after the court said the website was run on computers outside Germany, and outside its jurisdiction. Dr Toben represented himself in the Federal Court action - and does not appear to have made life easy for the court, or himself - having made various accusations against the applicant of initiating "Stalinist -like court actions" and engaging in "blatant totalitarian behaviour". (paragraph 27 of the judgment), and causing various delays in the proceedings over time.
Bits from the web site are included in the judgment.
Story in the Australian about the decision here.

 
Oh - this is great: low-tech protection of copyright...
New York Times reports that writers receiving review copies of two soon-to-be-released Epic albums — Tori Amos's "Scarlet's Walk" and Pearl Jam's "Riot Act" — are finding the CD's already inside Sony Walkman players that have been glued shut. Headphones are also glued into the players, to prevent connecting the Walkman to a recording device. By locking up the discs, Epic hopes to keep writers from converting the music to MP3's that can then be traded over the Net.

 
More on the Lessig "defence" of Palladium
Lawmeme, Yale Law School's "Slashdot for IT/IP Lawyers" (cf Harvard's Greplaw), via Ernie Miller, has an extended piece on Lessig's defence of Microsoft's version of digital rights management (ie, technological protection for copyright works via the operating system - otherwise known as a "trusted computing platform"). Lessig's point, as I blogged the other day, seems to be - better Palladium, which confines DRM to the "ends" of the network, than some other system, that might change the whole network.
Miller's response: most DRM is at the ends, rather than in the network (citing Professor Felten, who has also blogged the issue, and has far more technical knowledge than me), and if Palladium is better than other DRM systems, "the difference is more akin to that between the electric chair and lethal injection; either way fair use [ie fair dealing in Australian law] gets a death sentence."
I think Miller's last point is a significant one - with DRM that restricts use (which is the Palladium idea, that Lessig suggests is better than the alternatives) - each time you upgrade the system, you may have to renegotiate the licenses you have to use works - or the upgrade of the software just won't work. And you can see how that might happen: You get "Palladium 1.0" with your operating system, and you have a copy of a movie that plays on it. Version 1.0 allows you to play the movie, and fast forward through the boring bits. When you get Palladium 1.3 however, they've added some new bits to the program. Now the same copy you had before won't allow you to fast forward through the previews/ads - because the software has changed. ouch.

 
Sony Mod-Chipping Case - yes, Sony is appealing
The Australian is reporting that Sony will be taking the Mod-Chipping case on appeal. (I blogged this decision - see the archive for 26 July here). This of course is not a surprise, but it is good to have the confirmation. Issue to watch: who will the Chief Justice put on the appeal bench?

 
briefs have been posted in the Morpheus P2P case.
EFF reports that Attorneys for StreamCast Networks, developers of the popular Morpheus peer-to-peer (P2P) file sharing software, has filed briefs in federal court seeking a ruling that distribution of the software does not violate copyright law.

 
Second intellectual property quote of the day.
From the RIAA brief (warning - pdf document that takes a while to load - it's in colour!!!) in the Eldred v Reno case, first sentence:
"The RIAA and its members are dedicated defenders of the First Amendment and vigorously oppose government-sponsored censorship in all its forms."
As Lessig puts it, "That's apparently the mini-me version of the RIAA."

hmmm.

 
update on lessig
just did what I should have done before - checked out what Lessig had to say about his own piece on his own blog.
And he does give it a bit more specificity - basically, he says he is arguing that we need to think about antitrust, yes, and drm, yes, but also we need to think about how different drm technologies affect the architecture differently.
good point.
remaining issue however - and maybe this is me being too pig-headed - but if the computer, or rather, the system, controls what you can do with the copyright work, how is that better drm? what other kind of controls would hollywood want to put on computers?
actually, writing that, I've already worked it out. if the system is good, and you can only use existing copies in accordance with the system, then you don't need to control all the other things that are happening on the network, and you don't have to worry about copies getting distributed around - eg by peer-to-peer. but is a problem with that - all those other software and network innovations will still represent potential threats to the trusted system (particularly if interoperable) - so we are back where we started, but with an additional drm system?
not sure. too tired to think it through.

 
Lessig is being provocative again.... in a way that ties in to my random rant on 'accessibility' below
Lessig has come out in support of certain actions of Microsoft - specifically, some of the model represented by Palladium, Microsoft's "trusted computing" platform - which provides a basis, potentially, for digital rights management.
The piece is worth reading, if only to admire the way that Lessig starts a short article - in a way that is practically impossible to resist.
I don't yet see, I confess, the difference between a Palladium-enabled "token system" that he describes, where the system regulates whether, and how, machine X is allowed to use content Y, and a system that he criticises, where "Congress regulate[s] every machine on the Internet to protect Hollywood's content".

 
the problem of excessive accessibility (random rant and call to debate)
this is an issue that increasingly comes up in copyright law, and in relation to privacy.
As it was put in the Free Online Scholarship (FOS) Newsletter, "the problem of excessive accessibility arises when somebody thinks certain information should be hard to find, even if by law or policy it has to be made public or available to those who need it."
The Free Online Scholarship newsletter has raised the issue in relation to criminal records, phone numbers, and information that might be useful to terrorists, and in the april issue looked at the complaint by the Authors Guild (reported here in Wired) that Amazon sells used books on the same page as new books (when people buy the used books, the author gets no royalties).
perhaps you could also argue the same issue was lurking in the Salinger v Random House case (811 F 2d 90 (1987)) - that famous old copyright case about J D Salinger's letters - held in libraries but sought to be used by a biographer (who of course had actually gone and found all the letters of the letters in the libraries of Harvard, Princeton, and the University of Texas, to which they had been donated by the recipients or their representatives.) - although I'm sure J D Salinger would have preferred the letters weren't available in the libraries, either!)
one has a sense that copyright is often used to the same end - to restrict accessibility even of documents that are publicly available somewhere. Sometimes this is of course based purely on the profit motive - which is legitimate under basic suppositions of copyright law - and sometimes it is for reasons less intrinsic to copyright law. The trend in copyright law also is to give copyright owners the right to control each 'access' to a work - generally, on the basis that each access generates a copy and that copy is protected (this may not be the effect of the Sony decision, but that does, after all, turn on a quite restrictive view of what a 'copy' is).
thinking aloud then, perhaps we need more of a debate on this problem of 'excessive accessbility'. I don't know whether the debates that have come up in the privacy area are relevant here, but my gut tells me there are some cross-issues. Salinger v Random House; Harper & Row - all had some concept that copyright owners had a right of first publication, but thereafter their control was more limited (to reproduction, selling copies, performances). controlling each publication, on the other hand, is much more restrictive. We've had this debate in the copyright literature (eg litman, the exclusive right to read) but isn't it interesting to see it come up in other contexts, and this amazon context?

 
and now, back to the intellectual property.
more on Kenman Kandy.
Michael Handler, another ip aficionado (watch that name!) has pointed out to me that I have been much more restrained in my critique of Kenman Kandy on my blog than I have in discussing it with him. He is, of course, correct. I really do prefer Lindgren J's judgment, as I said, and for largely the reasons I said, although I would add one more: why would anyone bother registering designs if they can rely on a Kenman Kandy approach to three dimensional shapes? Remembering too that design rights are at least, time limited, and for a reason. grrr.

 
September 11.

Totally off topic.
but this time last year......
thanks to the heros.
and let's continue to pray that it doesn't result in war, or any further loss of innocent lives than we've already had - in America, Afghanistan, and in far too many other places.

 
Intellectual Property Quote of the Day.
"In the course of three days hearing of this case I have, I suppose, heard section 4 [of the British Trade Marks Act, 1938] read, or have read it for myself, dozens if not hundreds of times. Despite this iteration I must confess that, reading it through once again, I have very little notion of what the section is intended to convey, and particularly the sentence of two hundred and fifty three words, as I make them, which constitutes sub-section 1. I doubt if the entire statute book could be successfully searched for a sentence of equal length which is of more fuliginous obscurity."
- MacKinnon LJ, 1940
you know, I can think of an awful lot of intellectual property statutes that you could say that about, yes?
How about the meaning of "material form" (see Australian Video Retailers v Warner)? or (to look at my recent rant) the idea of something being applied "as a trade mark"? Ah, isn't it wonderful to know that some things just NEVER change.

 
I'm thinking shapes, I'm thinking fruity millennium bug jubes.
I'm thinking Kenman Kandy. Specifically, the full federal court decision (French, Lindgren and Stone JJ) handed down on 28 August.
Given that shape trade marks are kinda new (well, relatively speaking) and there are not that many decisions about them above the Registrar level, this is a biggie.
The big question: whether a shape (like a concocted bug like shape) is inherently adapted to distinguish (that is, whether you can register the mark before you can show that, in the market, consumers actually see it as a trade mark - indicating a connection with a particular manufacturer).
particularly like the French J phrase: "This [the test of 'inherently adapted to distinguish'] does not involve adventures in the Aristotelian taxonomy of form and substance. It requires a practical evaluative judgment about the effects of the relevant mark in the real world."
Although, with respect, I beg to differ - at least to some extent. When we are talking about applying a shape 'to' a product, and that product takes on the shape, where do you draw the line? What is the shape of a "gelatinous" confectionary, without the shape it is moulded into? a blob?
Personally, I prefer the judgment of Lindgren J, which really grapples with the special problems associated with shape marks - and the problem of drawing a line between goods and the shape being applied. And acknowledges the basic problem that a confectionary maker has to adopt some kind of shape, that children like animals, and in particular children like friendly looking animals.
To quote Lindgren J:

"All goods must have a shape and a colour. I cannot presently conceive of circumstances in which the shape or colour of any goods would be inherently adapted to distinguish them. ... There is a similarity, in the present respect, between the shape and colour of goods on the one hand, and a purely descriptive word on the other. Neither one is inherently adapted to distinguish. The only possibility of its distinguishing is by reason of its having already acquired a secondary meaning."

I agree. Manufacturers should have to go to s41(5) for shapes and colours. I'm concerned that this decision will encourage the Trade Marks Office to be more liberal in granting shape marks - especially before they are used, adding to the thicket of intellectual property rights that new entrants to a market must negotiate.

 
So maybe the ISP v Copyright Owners' fight isn't quite over yet
Not long ago I blogged the dispute between 4 major ISPs and the record labels over the Chinese site Listen4Ever.com - the legal proceedings were withdrawn after the site disappeared (one day after I blogged it all - dammit!). CNet are reporting that "A delicate detente is breaking down under pressure from peer-to-peer networks, placing two powerful industries on a collision course that could reshape the legal landscape for online file-swapping". So maybe it's not all over yet (what am I saying - of course it's not over yet. This is one source of tension that is bound to continue for some time yet....)
The basic issue goes back to the initial disputes over online copyright infringement. In some early cases (usually involving either playboy or scientology!) there were questions about secondary liability for copyright infringement over networks. Australia's Telstra v APRA case (that went all the way to the High Court) raised a similar issue (although there, the actual facts concerned music on hold - that wonder of modern technology). In the usual "negotiation between interests" that characterises copyright legislation reform, ISPs got an apparently not-bad deal - in the US, they submitted to a 'notice and take down' style law (the Australian legislation is far more vague - see section 39B Copyright Act - which provides that a carrier/ISP is "not taken to have authorised any infringement of copyright ... merely because another person uses the facilities ... provided" to infringe.

On a similar note, see also the National Journal Article, "The Digital Divide", on the analogous tension between copyright owners and technology providers/consumer electronics makers.