Oh dear. Now I'm a Cassandra
Or at least so Jason Soon says.
Context: John Quiggin has an oped in the Fin Review today (subscription required) talking about how the FTA is not likely to be a good deal for Australia. my comments on his piece are in the comments thread - basically i expressed agreement (pointing out all the other IP laws we in Australia might be requird to tighten up).
So Quiggin & I are Cassandras of academe.

Now, Jason may have a point that I tend to just look at the IP side of things, and from that point of view, the FTA doesn't look like a good thing to me. Who's afraid of the big bad lobbyists? Guilty as charged. But of course, FTAs are always about mutually beneficial compromise. Jason looks forward to rationalisation of competition law as a possible benefit, as well as a "Statement of Regulatory Principles" (how effective are such "statements of principle" likely to be, anyway? Not very in IP land, I would expect, particularly since IP itself usually defies sensible analysis in that it is really hard to tell whether it has more benefits than costs...).

Not being an expert/economist, I suppose i should confine my comments to - from an IP point of view, the FTA looks bad, because the effects are predictable. but a bit of cassandra like generalisation never hurt anyone... :-)

Update: just another thought - if the aim of an FTA is to change Australian law, and get bits of a policy wish-list enacted - I have objections (though admittedly wishful thinking type principled ones) from a transparency/democracy point of view. Make the case for the change of law - don't just put it in a free trade agreement box. Taken to an extreme, the transparency argument is obviously nonsensical, but there's at least some truth to the argument that not every such policy change should be achieved behind the closed doors of a negotiation with the US. Particularly if you don't get the real concessions you want (agricultural ones, presumably).

 
US pressure on intellectual property in Free Trade Talks
Yes, it's started (actually, I guess, it started a while ago but is sufficiently public now to have made the newspapers): the US is taking an aggressive stance in relation to Australia's intellectual property laws. Looks like they want something similar to the DMCA rather than our - dare I say more balanced - Digital Agenda reforms to copyright. Interestingly, what has made the news is not the extension of copyright terms (a la the Eldred case, which I blogged previously) but the US push for ISPs to be held liable for copyright infringements. The fact that this has made news is likely due to comments from the ISP industry here who no doubt are NOT going to want a Verizon-style regime here, where copyright owners can get the identity of users from ISPs without subpoenas, and where, more importantly, ISPs are liable if they don't remove material once notified by copyright owners. This has been discussed in Australia before but is, no doubt, back on the agenda so we can try to sell our lamb and other products. Ah, free trade agreements. The one thing the US dangles in front of anyone whose laws aren't quite up to scratch. Ironic given AUstralia's usual pro-IP stance in international negotiations. We seem to have been a fairly valuable ally in those negotiations over time; it's a shame that won't be at all relevant.

 
Too funny not to comment on
The University of Maryland, Baltimore is countering anti-intellectualism by feting their chess team like a sports team - yes, cheerleaders and all.
Great.
As my colleague Tim Stephens put it - perhaps we should get a cheer-leading squad for our jessup moot team too.

 
Gutnick
I've just been reading the judgments of the High Court in Gutnick again (that is, the High Court internet defamation decision, which was handed down 10 December 2002).. Leaving aside Gaudron J's brief concurring judgment for a moment, and just focussing on the other three - what a fascinating contrast from 3 judgments which essentially come to the same result, if not the same conclusion.

At one end we have Kirby J, expressing a sympathetic view of the arguments that existing defamation principles are not appropriate to the Internet. Even though he ultimately comes to the conclusion that the changes sought would be too great a leap for the judicial branch, you could read his judgment as encouraging people to keep thinking in terms that acknowledge the need, sometimes, for common law to adapt to new technology.

in the middle somewhere we have the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ. This judgment is, you might say, "moderation itself". They deny that the Internet differs from other forms of communication in relevant ways or sufficient to justify a change to the law. Like other communications technologies, they say, it has wide dissemination. We still think it comes back to where the reputation is. While it's arguable that they unduly downplay the difference between the Internet and other technologies, still, the focus (as Justin Hughes might say) is on translation - same legal norms, new context. As I said - moderation itself - and unlikely to encourage advocates, or judges, to push the "Internet is unique" line.

And then, finally, at the other end, we have Callinan J. One way to describe the judgment is - strong and opinionated. Another possible description is that it is a judgment that uses, as a method of legal argument, the denigration of the advocates, the case, and even United States Law. First, the sarcastic asides about the appellants ("the word 'profit' never passed the appellant's advocate's lips" (at [182]) (by the way - why would it? As Kirby J does point out, seeking some forensic advantage is not illegitimate. What do you want them to say? That "oh, we're just in it for the money, your Honour?" I can understand the reaction to some of the arguments, but such comments, even if allowable in advocacy, are not a compelling method of legal argument). Next, the sarcasm towards an argument that the Internet is different, mainly by drastically oversimplifying what the Internet is ("no more than a means of communication by a set of interconnected computers" (at [180])) (I'm not even going to start on the comparison his Honour draws between the ubiquity of the Internet and the ubiquity of any given brand of car). Finally, the almost entirely irrelevant comments about American First Amendment jurisprudence. Callinan J at [188] states:

"There is no doubt that the latter leans heavily, some might say far too heavily, in favour of defendants. Nor has the metaphor for free speech developed by Holmes J in a series of cases ... a marketplace of ideas, escaped criticism in the United States..."

First, it does not appear that the appellants were ever silly enough to argue that US law is better than Australian law and should therefore be applied. Second, I spent a semester studying First Amendment jurisprudence. Yes, you can make all SORTS of arguments about its failings and inconsistencies. But one thing you cannot do is sum up the entirety of First Amendment jurisprudence in the simple idea of a 'marketplace of ideas'. That is one metaphor, and not even the most commonly used one, that has been referred to in the States. But to refer only to that is the worst kind of misleading caricature. In fact, I think in my very first class on the First Amendment, with Jack Balkin, Professor Balkin tore the metaphor to shreds. And also pointed out the many other ideas that inform First Amendment cases and arguments. Given the clear irrelevance of the aside to the issues in Gutnick, it seems to me downright dangerous to engage in this form of "US law dilettantism". Such arguments might be relevant if the court came to consider 'reasonableness' as a defence (as suggested in the joint judgment at [51-52]. Not before.

 
Online Privacy - Copyright Owners don't need court order to get internet users' identity from US ISPs
Lawmeme reports on this court decision, and what it means. As Miller puts it,

What this means is that as easily as sending a cease and desist order, copyright holders may now request the names and addresses of ISP customers they suspect are copyright pirates

Note that the Eldred decision is already being used to counter attempts at policy arguments by counsel in copyright cases:

With copyright legislation such as the DMCA, "[t]he wisdom of Congress' action ... is not within [the Court's] province to second guess." Eldred v. Ashcroft, slip op. at 32.

Note - Australian law is notlike this - we have no equivalent provision.
NYTimes article here; Declan McCullagh here.

 
SMH Story - charging internet service providers for file sharing - that is, charging internet users for file sharing

SMH Story here: RIAA wants to "hold internet service providers accountable" for file-sharing.
I thought we'd already basically sorted this issue out when we dealt with internet service provider liability some time ago (Copyright Act, s39B and 43A).
Thing about this is it assumes that we're all doing the file-swapping thing. Come on - even high bandwidth use doesn't mean that.
same old story, several years later. grrr.

 
More Eldred - and Lessig's New York Times Proposal

Doc Searles' analysis of Eldred, here, is very good (and, golly gosh, approved by the man Lessig himself...). His basic point - that there is an issue of metaphor - the repositioning of copyright as property, not just some limited monopoly or the like - is a good one, and has been a source of argument for years in the IP community; Peter Drahos wrote a whole book about this ("A Philosophy of Intellectual Property" (1996) (book review of this book here (pdf).)

More interesting - Lessig's proposal post-Eldred, put forward in an op-ed piece in the New York Times. The basic proposal: after 50 yars, make people pay a fee - a small one, even as low as $1 according to Lessig's FAQ - each year to keep a work in copyright. The idea would be (a) works not being commercially exploited or that people didn't care about would fall in the public domain, (b) the really valuable works that are the justification for the Copyright Term Extension would continue to be protected, (c) the state would get some revenue, and (d) the government could keep a record of who paid the tax so it would be easier to check if something was still in copyright, and find the copyright owner.

The idea's prompted quite a lot of discussion - on /. (Slashdot, for the unitiated) and on the weblogs - guess we can expect something from Copyfight; watch this space.

OK, in some respects I like the idea. I'm still thinking about it. And if the tax only comes in after the minimum copyright term in the Berne Convention, I can see how this would not conflict with international treaty obligations. I can see a couple of quibbles however: (a) what about foreign copyright owners - are they suddenly going to have to worry about whether they've paid the tax, or how to do it? Not sure how it would accord with national treatment. Now, in relation to Australian copyright owners you could say - well, you only get the minimum Berne term in Australia, so why worry about what you do/don't get in the States? But that's not equal treatment with the copyright owners in the United States, so there might be some real issues. (b) what if a work isn't being commercially exploited for a while, but then is, and at some stage that 3 year period has elapsed. Will there be any appeal or provision for flexibility? I can answer that one myself though, I guess - the situation is unlikely. Works are unlikely to be suddenly "discovered" after 50 years. If they are, it's likely because someone has started to use them - probably because they are in the public domain. So there's not much of an argument there.

 
The CleanFlicks case, moral rights and ... ur ... only in America?
A friend sent me this link to a story in Slate on the CleanFlicks case (ta, Hugo!). If you haven't followed it, it's a case brought by major studios and directors against 11 small companies - mostly based in Utah - that cut or mask the naughty bits so their members can watch movies without getting all offended (or perhaps, all hot and bothered?). Lawmeme has had a few posts on this case - it's a classic conflict - directors want control over their works; these audiences, however, arguably have a legitimate claim to want to enjoy art without compromising their moral standards. Anti-censorship as I am, I've never thought people shouldn't be allowed to choose what they read, or watch, etc. But I can see directors' point: I would have loved to see James Cameron's face when he saw the corset that it put on Kate Winslet's body when posing for Leonard Di Caprio in Titanic.

The Slate article is right - the case is all about those things called moral rights - those wonderful things we have now in Australia courtesy of the Copyright Amendment (Moral Rights) Act 2000. America is one of the few pro-copyright countries in the world that really doesn't protect moral rights of authors.

They're a funny thing, those moral rights. They really do cut both ways. On the one hand, there are sitautions in which it seems downright obvious that moral rights will protect something quite fundamental. One of the best examples here is the case of Australian indigenous art, which tends to have particularly sacred associations and can cause deep offence when someone uses, or displays it, inappropriately. And even if we move outside that obvious area, one can see the directors' point - to an extent.

On the other hand, there is that free speech thing. Moral rights have the potential to tread all over our ability to take art or expression and turn it on its head.

The case engendered an expected response from the blogcritics over in the States. Lawmeme's Ernie Miller had an op-ed piece which was in the LA Times (now removed from there but archived at Lawmeme); Glen Reynolds of Instapundit basically agreed (do love the comment from one of Instapundit's readers: "And this lawsuit comes from those who will change the beginning, middle, end and every other part of a book they turn into a movie" - although of course, in most of those cases, either the work is out of copyright (Disney's favourite situation) or the author has basically signed away all their moral rights in selling the movie rights - and in countries like Australia, consent can be given for waiving moral rights..... ah, IAAL indeed).

Miller points out that there are different kinds of technology. One is the CleanFlicks approach: which makes a master copy of the movie with the naughty bits removed, and then provides copies for rental/sale to its members. That version of the technology seems to be a pretty clear copyright violation - you've got a permanently altered copy.

The second version consists of software in the DVD player. This version allows you to insert an unaltered DVD, then the software tells the DVD player how to play it - what bits to skip, or alter. All that is changed is what you see - the unaltered disk goes back to the video store unaltered. That's much more tricky in terms of copyright, and would raise some really interesting questions when read with the Australian Sony case and the AVRA v Warner case. As a question of moral rights under Australian law, it seems that it wouldn't be an act of "false attribution of ownership" (because it's not dealing with the copy "as being a copy of the unaltered film"); it might be derogatory treatment: "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" (s195AL). Note that s195AL doesn't explicitly require that you make a permanently altered copy, though there might be an argument that you're not dealing with the film - just the way it is being experienced by the consumer (though you might have an argument it was "reasonable in all the circumstances to subject the work to the treatment" (the defence in s195AS).

Query: one one level, moral rights sound like such a good idea. Is this potential level of control - over the way you watch a movie in your own home, an unintended consequence of introducing moral rights? Good thing? bad thing? On the other hand, as some of the comments on lawmeme pointed out - it's not actually a question of handing control back to the user of work, is it? The control is in the hands of the programmer. It's like filtering software where the list of filtered sites is a black box that you can't see - so you never actually know what you're missing.

For a sustained criticism of the Directors' Guild position (which roughly translates as a "how dare you cut up my work" position), see Miller's article on Lawmeme here. Too, too funny. Particularly the response by the Directors' Guild to the argument that the reason for the alteration is to assert certain moral values, particularly in relation to what children can watch:

"Further, to alter these creations in the name of "morality" or "family values" is the height of hypocrisy. What kind of morality and values does it teach our children when we say it is OK to cut scenes from a film, to cover up part of a painting or rip pages out of a book, simply because we don't like the way something was portrayed or said by somebody else?"

oh puh-lease.

 
Eldred gets some Aussie attention - and, of course, some more in the United States
Catallaxy Files and John Quiggin both have some comments on the Eldred copyright term extension decision of the US Supreme Court, I notice (ta for the links, guys).

The debates online about this decision have, of course, gone on. it's amazing, actually, the way that the existence of weblogs has allowed us to see a little in the minds of the players at the centre, particularly in this area. You might say, we've had unprecedented access - not just to the losing counsel's own reactions almost as they happen (on Lessig's blog) but also the reactions of those following the progress of the decision (via comments, particularly to Lessig's blog), and of other academics (see especially Jack Balkin's blog, and the Volokh Conspiracy - Eugene Volokh's blog). There's been some heated discussion, particularly over the question of whether it was predictable that the conservatives of the US Supreme Court would distinguish Eldred from other cases (particularly federalism cases) where they've held that Congress's power was limited by the terms of the grant of power.

The other great thing about followign the debate via blogs (if that wasn't enough) is the straightforwardness you get from opinions so expressed (as compared to the more carefully polished pieces we can shortly expect in assorted law reviews). My personal favourite is the comment from David Post on the Volokh Conspiracy, when asking himself, rhetorically, why the unelected members of the court should have intervened over the heads of the elected representatives of teh people in Congress:

"The answer is: the politics of copyright is deeply, profoundly, screwed up. The peoples' elected representatives are hopelessly, systematically, compromised. Copyright politics is all push and no push-back. The big copyright industries buy their way into the back rooms through political contributions and through their general economic muscle, and, once they get there, they say: We Want More. Congress gives them more because the 'public' is not in that room and doesn't really give a damn about the matter, anyway"

yup. Although apparently not quite as badly here in Australia, if the digital agenda stuff is anything to judge by.

[UPDATE - it's been pointed out to me that it looks here like I'm saying Australia's position is worse than US. Quite the opposite. I think the Australian Digital Agenda material is MORE balanced than the US material - particularly because we don't have an offence for circumvention - just for marketing/distributing the stuff. That doesn't mean I like everything about the Digital Agenda - but I think I like the DMCA even less...]

jason notes my "glumness" - true. My views on the case, though, are based not on the fact that I was optimistic that we would get a different result - it was always going to be a tall order - but because the results are just so bad. It just makes no sense (pace Posner) to extend copyright terms practically indefinitely. no economic sense whatsoever (as Jason's quotes from the economists' brief - signed by something like 5 Nobel Prizewinners - indicate).

There's also some glumness based on the fact that, unfortunately, there's some quotes in there about copyright law that are just plain wrong. Like the one in Ginsburg's opinion that suggests that it is "fair use" (a DEFENCE to copyright infringement) that allows us to take facts from copyright works and use them - rather than such use not being infringement at all. Stuff like that is just, well, depressing I'm afraid.

Even more depressing is what i said earlier - expect the push in the Free Trade Round for us to extend likewise. I note Quiggin's agreement on this one. aaaarrrrgggghhhh.

 
And yet more on Eldred
Best wrap up of the reactions, and in particular, the reactions from Harvard's Berkman Centre: here at the Copyfight site.

 
Could not have said it better myself...
Jack Balkin (of Yale Law School, First Amendment/Constitutional Scholar) on Eldred.
See also Lawrence Lessig's own very personal comments on the case on his blog; and the comments, some of which are completely puerile, others of which are rather good.

 
Eldred Down. Free Expression is dead. Copyright Scholars and Individual Creators in Mourning

Well, I'd been suffering the old 'blogging blues' for a while now; and looking for something to wake me up and that seemed worth commenting on. It's official, Congress can do just about whatever it likes in the US in relation to extending copyright terms. New York Times story here. Lessig's own blog has PDFs of the Supreme Court opinions, as does Lawmeme.

Eldred is the case where Larry Lessig challenged the constitutionality of the Sony Bono Copyright Term Extension Act - the one that extended the copyright term - prospectively AND retrospectively (ie for works already created) by 20 years. Supposedly to harmonise with Europe. The Act that ensured that the original Mickey Mouse films, and the song Happy Birthday remain in copyright. Lessig lost 7:2.

As scholars pick over the remains of any hopes of challenging the boundless extension of copyright, there will, of course, be those who pin hopes on some of the comments in Ginsburg's majority opinion. Like ones that suggest that fair use is required owing to the First Amendment. Like hints that fact/expression dichotomy is important (although a comment that it is fair use that allows people to use facts is - if not just poorly expressed, plain wrong). And no doubt some will argue that the opinion is based, not on broader constitutional issues, but on history. Because Congress have extended terms before, without challenge, they can extend them again. (Look to see this argument in another 15 years or so, yes?). Like so many Supreme Court decisions, there is something here for everyone, even the people who lost.

Lessig himself suggests perhaps what is needed is a push towards Congress/the Legislature. I'm inclined to think that right, in that I don't think any help can be sought from the courts to limit overweening extensions of copyright power, whatever the hints and suggestions in the judgment. What with North Korea, and Iraq, and GWB war-mongering however, I am not feeling all that optimistic today.

Another thing we can look to, I think, in the current round of Free Trade Negotiations between Australia and the United States, is pressure from the States, freed from the spectre of constitutional challenge, to Australia to extend its copyright terms to match those of the United States. So perhaps what we REALLY need is some pressure back here in Australia.