What am I reading today? 10 Aug 2017

Shelves of books in Stockholm library
What am I reading today?

Here are some of the stories that caught my attention in the past 2-3 weeks or so:

Intellectual property

US: THE SLANTS trademark application officially approved - and the SCOTUS ruling 
US: Apple owes WARF $506 million for intellectual property it used
Canada: Haliburton officials upset after man trademarks name of county

Copyright

Olive Cotton Award: Is it a photo? Is it a portrait? Should...
Beyonce Can't Dodge 'Formation' Copyright Lawsuit
Access Copyright v. York University: An Anatomy of a Predictable But Avoidable Loss

Broadband and Internet

AU: NBN's speed woes were a time bomb we all saw coming
EU: Sweden scrambles to tighten data security as scandal claims two ministers
AU: SA lawmakers drafting laws that include requiring suspects to reveal their passwords
US: New Bill Seeks Basic IoT Security Standards
AU: Government log on - Turnbull government considers universal ID
'Anonymous' browsing data can be easily exposed, researchers reveal 

Privacy 

AU: The creepy law proposed by Qld Police - Sunshine Coast Daily and Boing Boing 
*Ed: Let's hope the parliamentary committee catches its breath on this one...

Telecoms

AU: Telco groups at war over 5G spectrum

Law practice

How Far Are Lawyers From Drafting Smart Contracts?

What am I reading today? 15 July 2017

Shelves of books in Stockholm library
What am I reading today?
Here are some of the stories that caught my attention in the past 6 weeks or so:

Intellectual Property

The Federal Court of Canada has ruled that Access Copyright is entitled to collect royalties from York University for its staff’s and students’ copying of articles and other materials used in “coursepacks” and learning management systems. The University had argued that its copying was fair dealing under the Copyright Act (RSC 1985, c C-42). Commentator Michael Geist offers a scathing review (http://www.michaelgeist.ca/2017/07/ignoring-supreme-court-trial-judge-hands-access-copyright-fair-dealing-victory/) of the decision, saying it ignores the Supreme Court of Canada’s copyright decisions; while commentary from other firms including Bereskin & Parr are more neutral (http://www.bereskinparr.com/Doc/id956). This decision seems ripe for an appeal.

On 26 May 2017, the Full Federal Court found that a trade mark application must be made in the true owner’s name, and a later assignment from an applicant to the true owner cannot correct any defect in ownership. See Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd (http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2017/2017fcafc0083). This overturns the previous Australian law position about ownership of a trade mark application. However, the Insight decision means that the ownership requirement for trade mark applications is different to that of registered designs and patents.

Data privacy & policy

After the Guardian reported a darknet trader is illegally selling on-demand Medicare patient details, the Australian government announced a security review into the accessibility of Medicare’s online system. The review will be led by Prof Peter Shergold, with the report due by 30 September 2017.

Continuing the Australian government’s anti-encryption rhetoric, PM Malcolm Turnbull and Senator George Brandis have said that by year-end, the Australian government would introduce draft legislation seeking to force tech companies to decrypt end-to-end encrypted messages in real-time; compell device manufacturers to help authorities break into devices they sell; and give the Australian Federal Police an authority to “remotely monitor computer networks and devices” (this is currently limited to ASIO).

The Age’s Tony Wright comments on a new book from David Dufty, “The Secret Code-Breakers of Central Bureau: How Australia’s signals intelligence network helped win the Pacific War”, about Australia’s WWII signals intelligence and code-breaking operations at the Monterey building in Melbourne – a local version of the UK’s Bletchley Park.

What am I reading today? 2 July 2017

Shelves of books in Stockholm library
What am I reading today?
Here are some of the stories that caught my attention in the past 6 weeks or so:

Data privacy & policy

Australian PM Malcolm Turnbull and Senator George Brandis are reportedly looking at changing Australian laws (News) to force telecommunications and technology firms to help authorities decrypt suspect messages , including by sanctioning providers who do not comply with requests (Guardian).

Brandis took his message of banning working cryptography (Boing Boing) to the “Five Eyes” meeting in Ottawa this past week, where the delegates agreed to engage with industry on terrorists’ use of encryption (Globe and Mail). 

Google wants to make it easy for law enforcement to access user data overseas (Reuters), just as the [US] Department of Justice threatens to take the Microsoft email warrant fight to the US Supreme Court (Gizmodo).

From 1 July air travelers no longer need to fill out a departure card (Traveller) before leaving Australia. This is a consequence of the Government’s changes to Australia’s international airports (SMH). 

Copyright

The Copyright Amendment (Disability Access and Other Measures) Act 2017 to implement Australia’s obligations under the Marrakesh Treaty (WIPO) received royal assent on 22 June 2017. Among other changes, this will create a new “fair dealing” exception to allow other people to help people living with disabilities by creating and sharing accessible versions of books and other materials in braille, large print or DAISY audio formats. When I last checked in mid-June, 28 countries had ratified the Marrakesh Treaty.

WikiMedia continues to campaign to bring fair use to Australian copyright law (WikiMedia).

In May, the Supreme Court of Canada agreed (Lexum) to hear an appeal of a case that could alter Canada’s interprovincial trade laws (Globe). In 2012 a New Brunswick man, Gérard Comeau, visited neighbouring Quebec and bought 14 cases of beer and three bottles of liquor. On his return to New Brunswick, the RCMP fined him almost C$300 for exceeding the import limit on beer and liquor from another province. He fought the fine, and both the trial court and NB Court of Appeal favoured  Mr. Comeau’s arguments that the Constitution Act 1867 had mandated free trade among the Canadian provinces. The tentative hearing date is 7 December 2017 (Lexum).

Technology

The Department of Communications has recently consulted on the proposed civil penalty regime for non-consensual sharing of intimate images (DoC). Submissions closed on 30 June.

This week’s Petya/GoldenEye ransomware attack started in the Ukraine, and also hit Australian businesses including Cadbury (ABC). And Victoria Police now say that WannaCry may have disabled all Victorian speed cameras (iTn) after the contract operator’s maintenance tech connected an infected USB key to a computer on the camera network. The original report was that 55 cameras had been infected. 

A Sydney man had an Opal card implanted into hand (ABC) to paying for public transport easier. How’s that for tap-and-go.

Internet, Broadband and Telecommunications

Australia’s “Netflix” tax – extending the 10% GST to digital content such as streaming, online video, games, apps and e-books – went into effect this week. In addition, Netflix decided to lift some of its prices also by 10%, so that the top-end Netflix package now costs Aussie consumers $17.99 including GST (SMH).

In mid-May 2017, the EU Commission fined Facebook €110 million for providing misleading information during the Commission’s 2014 merger regulation investigation into the WhatsApp takeover (Europa). Then in June, the EU fined  Google a record €2.42 billion (BBC) for manipulating search results to promote its online shopping service.
 
Back in Oz, the Department of Communications has started public consultation on telecommunications carrier powers and immunities (DoC) http://www.minister.communications.gov.au/mitch_fifield/news/public_consultation_on_telecommunications_carrier_powers_and_immunities

iiNet wins in copyright appeal case (AFACT v iiNet) – April 22, 2012

On 20 April 2012 the High Court of Australia handed down its decision in the “iiTrial” between Australian Federation Against Copyright Theft (a group of 34 movie studios and TV production companies) and Australian Internet service provider iiNet.

The main question on appeal to the High Court was whether iiNet “authorised” its users’ copyright infringment by not sending warning notices to customers and not stopping them from any infringing use of Internet file-sharing tools and services.

The Court found that the copyright infringement notices issued by AFACT members to iiNet were merely allegations of infringing behaviour and did not satisfy the civil standard of proof (at [75]). The notices “did not provide iiNet with a reasonable basis for sending warning notices to individual customers containing threats to suspend or terminate those customers’ accounts” (at [78]). The Court dismissed the appeal by a 5-0 verdict and ordered AFACT to pay iiNet’s costs in the High Court hearings.

A number of experts and commentators have posted their thougths on the High Court’s decision, and as such I do not propose to canvas the case here. Some suggest that copyright rights holders would call on legislators to amend the Copyright Act 1968 (Cth), continue to press for an industry code including a “three-strikes” rule, or start legal action against content hosts (such as YouTube) and possibly even end-users.

See:

In 2010, justice Cowdroy of the Federal Court held that iiNet did not “authorise” alleged copyright-infringing activities by iiNet’s customers (see Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24). In February 2011 justices Emmett, Jagot and Nicholas of the Federal Court of Appeal upheld justice Cowdroy decision 2:1 (see Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23 per Emmett and Nicholas JJ, Jagot J dissenting). In August 2011, the High Court granted leave to AFACT to appeal against the Full Federal Court’s decision. That appeal was heard on 1-2 December 2011.

Copyright appeal heading to High Court in December – October 9, 2011

The two-year old copyright dispute between Australian ISP iiNet and the Australian Federation Against Copyright Theft (AFACT) will be heard in the High Court on 1-2 December 2011.

As discussed in my post of 23 February 2011, the Federal Court in 2009 and 2010 found that iiNet did not “authorise” alleged copyright infringing activities by its customers. In August 2011, the HCA granted AFACT the right to appeal against the decision of the Full Federal Court, on five grounds.

Australian A-G announces agenda for copyright reviews in 2011 – February 25, 2011

On 25 February 2011, the Commonwealth Attorney-General Robert McClelland addressed the Blue Sky Conference: Future Directions in Copyright Law. He indicated that his department may examine several copyright issues in the year ahead, including:

  • examining the policy implications of the Full Federal Court’s decision in the AFACT v iiNet case (Roadshow Films Pty Ltd v iiNet Limited [2011] FCAFC 23);
  • consulting on a proposal to broaden the definition of “carriage service provider”, which currently excludes entities that do not provide network access but provide online services (eg Google, Yahoo);
  • inviting submissions on whether new exceptions under the Copyright Act 1968 (Cth) should be introduced to permit some circumvention of technological protection measures, such as for education purposes; and
  • providing the Australian Law Reform Commission with a reference on copyright later in the year, which may include examining “some exceptions under our law in the context of the online environment and whether the correct balance exists”.