August 2007 Archives
The RAAF F-111's did their "practice run" this afternoon, in preparation for the main event tomorrow night. However, they seem to be doing things differently to previous years.
In all previous years that I've been to Riverfire, the F-111's (or the single F-111, in years such as 2005 where only one has participated) have invariably approached from the south. In today's practice run, the F-111 flying along the South Bank stretch of the river approached from the north, whereas the F-111 flying along the Eagle St stretch of the river approached from the south as normal.
Assuming that this pattern repeats itself tomorrow night, people on the South Bank stretch of the river (that is, on the western side of the CBD) should watch for an F-111 approaching from the north. If, like me, you were expecting both aircraft to approach from the south, you may be looking in the wrong direction.
Photographers (such as myself -- the photos in my previous posting on Riverfire were taken by yours truly) wanting to capture the event should consider their choice of location, framing, and timing accordingly. Taking this shot as an example, it wouldn't look anywhere near as good with the aircraft approaching from the north -- because of the pull-up manoeuvre, it would have passed out of the top of the frame before it got even half-way across.
People in South Bank apartments will no longer have the F-111's passing low overhead, but people around the North Quay end of town will be in for a louder than normal experience.
[If anyone has a house, apartment, or hotel room with a balcony with a good view, and they don't mind me gate-crashing, email me! Free enlargements available!]
In all previous years that I've been to Riverfire, the F-111's (or the single F-111, in years such as 2005 where only one has participated) have invariably approached from the south. In today's practice run, the F-111 flying along the South Bank stretch of the river approached from the north, whereas the F-111 flying along the Eagle St stretch of the river approached from the south as normal.
Assuming that this pattern repeats itself tomorrow night, people on the South Bank stretch of the river (that is, on the western side of the CBD) should watch for an F-111 approaching from the north. If, like me, you were expecting both aircraft to approach from the south, you may be looking in the wrong direction.
Photographers (such as myself -- the photos in my previous posting on Riverfire were taken by yours truly) wanting to capture the event should consider their choice of location, framing, and timing accordingly. Taking this shot as an example, it wouldn't look anywhere near as good with the aircraft approaching from the north -- because of the pull-up manoeuvre, it would have passed out of the top of the frame before it got even half-way across.
People in South Bank apartments will no longer have the F-111's passing low overhead, but people around the North Quay end of town will be in for a louder than normal experience.
[If anyone has a house, apartment, or hotel room with a balcony with a good view, and they don't mind me gate-crashing, email me! Free enlargements available!]
Gyles J of the Federal Court of Australia made some rather scathing observations about the competence (or lack thereof) of certain solicitors and their conduct of a matter before him in Jovanovski v Telstra Corporation Limited [2007] FCA 1322:
Ouch!
The chronology of this matter to date makes very sad reading. It demonstrates a continuing failure to understand the obligations of a solicitor in matters of this kind on several levels. The first and most fundamental is not appearing on the date and time required in Court on two occasions. Secondly, absolutely incompetent attention to the settling of an index which, itself, involved time defaults. Thirdly, not ensuring, by the time this application was made, that the index was settled. Fourthly, having the temerity to suggest that the costs, if the application were allowed, should be costs in the cause. Fifthly, having failed to appear initially, on the next occasion being represented by an agent who had no idea about the case at all and was unable to advance any substantive assistance having told me he had been called at the last moment, then persisting, on the following occasion, in having that agent appear again, still with no idea about the case. Finally, in providing an absurd explanation about 10.00 am rather than 9.30 am being the time when, first of all, 9.30 am is the general time for directions in this Court, secondly, where there is a list published every day, and thirdly, a list is available on the internet the night before and on the morning of the directions hearing. I say "absurd" because it shows a total incompetence by the practitioners concerned, both the principal and the agent.
The difficulty I have, of course, is that I am not here to discipline solicitors. I am here to hear cases by litigants. There is no time limit involved. The applicant, I am told by counsel, has a case worth pursuing and it would be unjust if that were not permitted to be pursued because of the defaults of the solicitors concerned who, frankly, it seems to me, still have absolutely no idea of the obligations involved to their client and to the Court. But that can be cured, so far as I am concerned, by costs. Professional discipline is not within my jurisdiction. However, the judgment will not be set aside unless and until an index is settled.
The order dismissing this proceeding is set aside conditionally upon a settled index being filed on or before 23 August 2007. I order that the costs of and incidental to this motion be paid by the solicitor for the applicant upon an indemnity basis.
The ACCC has announced that the High Court of Australia has allowed their appeal in Australian Competition and Consumer Commission v Baxter Healthcare Pty Limited [2007] HCA 38. Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ were the majority, with whom Kirby J agreed. Callinan J dissented.
The case involved allegedly anti-competitive conduct of Baxter Healthcare, in contracting with state government health departments. At first instance, the Allsop J held that Baxter's conduct would have contravened the Trade Practices Act, but because they were contracting with state government departments (who were not carrying on a business, which would explicitly bring them within the scope of the TPA), Baxter was entitled to derivative crown immunity and the relevant provisions of the TPA could not apply to their conduct.
Both Baxter and the ACCC appealed -- the ACCC on the basis there was no derivative crown immunity, and Baxter on the basis that their conduct would not have contravened the TPA in any case. The Full Federal Court dismissed the appeal, but only considered the crown immunity issue. Hence, the case will return to the Full Federal Court to reconsider the findings of Allsop J on whether Baxter's conduct, absent the crown immunity, contravened the TPA.
The case involved allegedly anti-competitive conduct of Baxter Healthcare, in contracting with state government health departments. At first instance, the Allsop J held that Baxter's conduct would have contravened the Trade Practices Act, but because they were contracting with state government departments (who were not carrying on a business, which would explicitly bring them within the scope of the TPA), Baxter was entitled to derivative crown immunity and the relevant provisions of the TPA could not apply to their conduct.
Both Baxter and the ACCC appealed -- the ACCC on the basis there was no derivative crown immunity, and Baxter on the basis that their conduct would not have contravened the TPA in any case. The Full Federal Court dismissed the appeal, but only considered the crown immunity issue. Hence, the case will return to the Full Federal Court to reconsider the findings of Allsop J on whether Baxter's conduct, absent the crown immunity, contravened the TPA.
This Saturday evening is Riverfire, the highlight of Brisbane's yearly River Festival. The highlight of Riverfire is of course the F-111's of the Royal Australian Air Force turning kerosene into speed, noise and light with their "dump and burn" flyover. One or two F-111's overfly the Brisbane river opposite the CBD, at a height of about 400 feet (lower than many buildings in the CBD), with their afterburners on, while dumping fuel.
In the daytime, it's impressive: (click for larger version)
But at night, it's awe-inspiring: (click for larger version)
Still images can't really do justice to the first-hand experience of the event. Here's a video that will give you a better idea of what it's like:
[Other videos here, here and here]
Alas, it still doesn't capture the raw energy of the real thing. I love the smell of Jet-A in the evening. The F-111's won't be flying forever -- Australia is the last country in the world to fly the F-111, and they are scheduled to be retired in 2010. Riverfire is a fantastic opportunity to see them up close and personal, while you still can.
In the daytime, it's impressive: (click for larger version)
But at night, it's awe-inspiring: (click for larger version)
Still images can't really do justice to the first-hand experience of the event. Here's a video that will give you a better idea of what it's like:
[Other videos here, here and here]
Alas, it still doesn't capture the raw energy of the real thing. I love the smell of Jet-A in the evening. The F-111's won't be flying forever -- Australia is the last country in the world to fly the F-111, and they are scheduled to be retired in 2010. Riverfire is a fantastic opportunity to see them up close and personal, while you still can.
The Computer and Communications Industry Association (a group of tech companies including Microsoft, Google, et al) has filed a formal complaint with the US Fair Trade Commission, over "years of consumer deception" in the form of misleading and deceptive copyright warnings from major copyright holders.
Some examples of the types of warnings in issue here include:
The consequences for disregarding these warnings can be severe:
The complaint alleges that the copyright holders:
Some examples of the types of warnings in issue here include:
NFL warning: (this clip was, itself, ironically, the subject of a DMCA takedown notice from the NFL)
Sterling Mets warning:
Commissioner of Baseball warning:
The consequences for disregarding these warnings can be severe:
The complaint alleges that the copyright holders:
have engaged, and continue to engage in, a nationwide pattern of unfair and deceptive trade practices by misrepresenting consumer rights under copyright law, and in some cases threatening criminal and civil penalties against consumers who choose to exercise statutorily or Constitutionally guaranteed rights. These false representations violate the letter and spirit of the Federal Trade Commission Act's prohibition against unfair or deceptive acts or practices in or affecting commerce.Other articles on this topic are here and here. [For nytimes.com username and password, use bugmenot.com]
Kevin Andrews, the Minister for Immigration, has had a lot to say in public about "irregularities" in the CV of one of Dr Mohamed Haneef's co-workers. Interestingly, brisbanetimes.com.au reports that the Minister's own CV may have overstated his accomplishments.
The controversy relates to three publications, which are:
Fairly clear-cut so far. Two chapters in edited books, and one paper in a published conference proceedings. Yet, the Minister's CV and website claims that he co-authored each of these books. Puffery? Edited by an underling who isn't wise to the nuance of academia? Summarising with extreme prejudice? Who knows. But one thing is certain: the list of things that Kevin Andrews has to explain has just gotten longer.
[Update: Andrews is reportedly still insisting he "co-authored" the books in question.]
The controversy relates to three publications, which are:
- Kevin Andrews, 'You as an Elderly Person' in Jude Wallace and Tony Pagone (eds), Rights and Freedoms in Australia (1990). [one paper out of 25]
- Kevin Andrews, 'Regulating Embryo Experimentation' in Hiram Caton (ed), Trends in Biomedical Regulation. [one paper out of 21]
- Kevin Andrews, 'In-vitro Fertilisation and Genetic Manipulation - Australian Developments' in C J Vas and E J De Souza (eds) Issues in Biomedical Ethics (1990) [conference proceedings, one paper out of 39]
Fairly clear-cut so far. Two chapters in edited books, and one paper in a published conference proceedings. Yet, the Minister's CV and website claims that he co-authored each of these books. Puffery? Edited by an underling who isn't wise to the nuance of academia? Summarising with extreme prejudice? Who knows. But one thing is certain: the list of things that Kevin Andrews has to explain has just gotten longer.
[Update: Andrews is reportedly still insisting he "co-authored" the books in question.]
Earlier in August, the New South Wales Supreme Court handed down its long-awaited judgment in the eBay Wirraway case -- more formally known as Smythe v Thomas [2007] NSWSC 844. That judgment pre-dated the establishment of this blog, but it's quite a significant case -- at least so far as eBay buyers and sellers in Australia are concerned -- so it's worth a recap.
The facts, briefly stated, are that Thomas listed a rare and valuable Wirraway aircraft on eBay, with an auction duration of 10 days and a minimum price of $150k. Smythe, after a phone conversation with Thomas (the substance of which was disputed) placed a bid for $150k and, there being no other bidders, "won" the auction.
[I'd rather buy a T-38, or a nice Embraer bizjet, but I digress...]
Thomas was unhappy because he was hoping to obtain $250k for the aircraft. He refused to complete the transaction, and Smythe sued. Thomas' defence was:
Despite the fact that eBay were downplaying the potential effect on their business model and online commerce via eBay in Australia generally, it would seem that if Thomas had succeeded on any of his first three defences, it would have thrown a serious spanner into eBay's collective works. It's reassuring to see that this didn't happen.
The facts, briefly stated, are that Thomas listed a rare and valuable Wirraway aircraft on eBay, with an auction duration of 10 days and a minimum price of $150k. Smythe, after a phone conversation with Thomas (the substance of which was disputed) placed a bid for $150k and, there being no other bidders, "won" the auction.
[I'd rather buy a T-38, or a nice Embraer bizjet, but I digress...]
Thomas was unhappy because he was hoping to obtain $250k for the aircraft. He refused to complete the transaction, and Smythe sued. Thomas' defence was:
- There was a contract (the eBay User Agreement) between Thomas and eBay, and between Smythe and eBay, but there was no contract or agreement between Thomas and Smythe;
- The eBay listing was analogous to a classified advertisement -- i.e. an invitation to treat;
- Even if there was offer and acceptance, the time for payment was to be negotiated and the agreement was therefore incomplete;
- Smythe waived his right to bid on the auction, based on the content of the disputed phone call.
Despite the fact that eBay were downplaying the potential effect on their business model and online commerce via eBay in Australia generally, it would seem that if Thomas had succeeded on any of his first three defences, it would have thrown a serious spanner into eBay's collective works. It's reassuring to see that this didn't happen.
I'm going to refrain from editorialising about this, I think the videos, pictures, and news articles speak for themselves. Watch the video, read the news articles, decide for yourself:
Video and photographs of undercover police officers attempting to incite violence
News article: Undercover cops tried to incite violence in Montebello: union leader
News article: Quebec police admit they went undercover at Montebello protest
News article: Quebec police defend officers' actions at summit
Video and photographs of undercover police officers attempting to incite violence
News article: Undercover cops tried to incite violence in Montebello: union leader
News article: Quebec police admit they went undercover at Montebello protest
News article: Quebec police defend officers' actions at summit
Based on the media reports I've seen, Sydney looks like it's going to hell in a hand-basket, and all because of the APEC meeting to be held there early next month. I question whether whatever supposed benefits to the country that result from having the APEC meeting here justifies the monetary expense, and the gross inconvenience and abrogation of the civil liberties of people living, working, and travelling through Sydney during this period.
To facilitate this interregnum of our civil liberties, the NSW government has enacted the APEC Meeting (Police Powers) Act 2007, which contains a large number of worrying provisions, including:
To facilitate this interregnum of our civil liberties, the NSW government has enacted the APEC Meeting (Police Powers) Act 2007, which contains a large number of worrying provisions, including:
The Police Minister may, by notice published in the gazette, declare any area in metropolitan Sydney a "declared area" under the act; [s 6]
The Commissioner of Police may, by written order, declare that any part of a declared area is a "restricted area" to which further restrictions apply. The Commissioner must take "reasonable steps" to notify the public of such an order, but need not do so if they consider it would significantly compromise security arrangements; [s 7]
During the "APEC period" (30 August to 12 September), police may, without a warrant and seemingly without any suspicion that the person has or will commit an offence, stop and search anyone in or seeking to enter a declared or restricted area, and detain them for as long as is reasonably necessary to conduct the search; [s 12]
Police may also give "reasonable directions" to any person or group of persons in a declared area; [s 14]
Police have further powers in relation to restricted areas, including the power to enter and search any premises (except residential premises) without warrant; and to require the production of identification from anyone in or seeking to enter a restricted area; [ss 21 and 22] The Sydney Morning Herald reports that police may require identification from people wanting to cross the road in some areas of the CBD.
Entering a restricted area without "special justification" (as defined in s 37) is a criminal offence punishable by six months imprisonment. [s19]
The Commissioner of Police can compile an excluded persons list of persons who they are satisfied "would pose serious threats to the safety of persons or property"; [s 26]
People who are on the Commissioner's blacklist, or who refuse to comply with a "reasonable direction" under s 14, or who resist being searched, (etc) can be excluded from declared or restricted areas for the duration; [ss 24-25]
There is a presumption against bail for certain offences. [s 31]
Continue reading NSW: Temporary Police State.
Slashdot have a story concerning a major outage in the "Windows Genuine Advantage" servers. This outage resulted in a large number of genuine, legitimate installations of Microsoft Windows products incorrectly identifying themselves as "non-genuine" with a subsequent lessening of functionality [see e.g. this or this] -- presumably to encourage those damn dirty software pirates to buy a copy of the real thing. Even though they already had.
Microsoft have dropped the ball on this one. Even though the problem is now fixed, and they have apologised, and provided instructions on how to rectify systems that were incorrectly stigmatised as non-genuine during this period, this demonstrates what can happen when even apparently-well intentioned DRM systems malfunction. No word on whether any compensation will be forthcoming, but Microsoft have their EULA's to hide behind, so I doubt this will happen, possibly except as a goodwill gesture and without admission of liability.
If my business had been disrupted by something such as the inadvertent activation of the MS Office "kill switch" described in this article, or I was prevented from working on an assessment item for university by it, I would be wanting Microsoft's corporate head on a platter, and some monetary compensation.
Microsoft have dropped the ball on this one. Even though the problem is now fixed, and they have apologised, and provided instructions on how to rectify systems that were incorrectly stigmatised as non-genuine during this period, this demonstrates what can happen when even apparently-well intentioned DRM systems malfunction. No word on whether any compensation will be forthcoming, but Microsoft have their EULA's to hide behind, so I doubt this will happen, possibly except as a goodwill gesture and without admission of liability.
If my business had been disrupted by something such as the inadvertent activation of the MS Office "kill switch" described in this article, or I was prevented from working on an assessment item for university by it, I would be wanting Microsoft's corporate head on a platter, and some monetary compensation.
In July this year, Jetstar lost a case in the Victorian Civil and Administrative Tribunal concerning its terms and conditions of sale. The case, Free v Jetstar Airways Pty Ltd [2007] VCAT 1405, involved a term of Jetstar's agreement:
At the time, I predicted that Jetstar was likely to appeal, and to stop allowing name changes altogether. I was right. Not only is this a rather petulant act, it seemingly ignores the possibility that their new term:
JETSAVER FARE RULESThe Applicant had booked two tickets to Honalulu for herself and her sister, for $437.39 per person return. Afterwards, her sister became unable to travel and the applicant wanted to change her sister's ticket into her niece's name. Jetstar would only do so if she paid a $75 change fee, plus the difference between what she originally paid for the tickets and what the tickets were currently selling for -- which was $600.93. The Applicant paid under protest and brought proceedings in VCAT alleging the above terms, as applied to changes of name, were unfair terms within the meaning of the Fair Trading Act 1999 (Vic). The Tribunal agreed and ordered a refund of the $600.93.2.1 Subject to availability and payment of all applicable amounts, changes can be made to your Booking as follows. Changes to the origin and destination of travel are not permitted.
2.2 Your new fare will be at least the amount of the fare you originally purchased, and may be more. At the time your Booking is changed you must pay the difference (if any) between the fare you originally purchased and the fare available on the date of the change. This will apply to all date, time and name changes.
2.3 Date, time and Passenger name changes may be made by telephoning Jetstar Telephone Reservations ... A change fee* is payable for each change, for each passenger flight segment change ...
*Current Jetstar fees and a summary of fare types can be found at jetstar.com/faretypes.html.
At the time, I predicted that Jetstar was likely to appeal, and to stop allowing name changes altogether. I was right. Not only is this a rather petulant act, it seemingly ignores the possibility that their new term:
Only date and time changes are permitted, subject to availability. Changes to the passenger name and changes to the origin or destination of travel are not permitted.could very well be an unfair term as well.
There has been something of a media feeding frenzy today over revelations that Australian government agencies, including the Department of Prime Minister and Cabinet have been editing Wikipedia articles -- in some cases, to change the slant of the articles, in others, engaging in puerile vandalism. (Unless there's some valid reason for inserting "Poo bum dicky wee wee" into an article on martial arts)
The Department of Prime Minister and Cabinet edited a Wikipedia article on "Mandatory detention in Australia" to change a reference to inhumane conditions of detention" to read "allegedely [sic] inhumane conditions of detention" and inserted a "Some commentators argume [sic] that" elsewhere in the article. Perhaps they need to learn how to spell check their work? In any case, those changes were reverted less than six hours later because of the use of "weasel words". Thus, the system worked.
The edits made by the NSW Premier's Department are more concerning, as they involve the editing of articles to remove or sanitise potentially embarrassing information. Since the story broke this morning, the Wikipedia entry for Morris Iemma (the NSW Premier) has been the subject of repeated vandalism.
Alexander Downer has accused Wikipedia of being "anti government", and the Department of Prime Minister and Cabinet are denying that they were responsible for the edits in question. Despite the fact that the APNIC WHOIS database records the IP address in question as being in a block assigned to the Department of Prime Minister and Cabinet, they deny it was in fact used by them.
The Department of Prime Minister and Cabinet edited a Wikipedia article on "Mandatory detention in Australia" to change a reference to inhumane conditions of detention" to read "allegedely [sic] inhumane conditions of detention" and inserted a "Some commentators argume [sic] that" elsewhere in the article. Perhaps they need to learn how to spell check their work? In any case, those changes were reverted less than six hours later because of the use of "weasel words". Thus, the system worked.
The edits made by the NSW Premier's Department are more concerning, as they involve the editing of articles to remove or sanitise potentially embarrassing information. Since the story broke this morning, the Wikipedia entry for Morris Iemma (the NSW Premier) has been the subject of repeated vandalism.
Alexander Downer has accused Wikipedia of being "anti government", and the Department of Prime Minister and Cabinet are denying that they were responsible for the edits in question. Despite the fact that the APNIC WHOIS database records the IP address in question as being in a block assigned to the Department of Prime Minister and Cabinet, they deny it was in fact used by them.
inetnum: 210.193.176.96 - 210.193.176.127EFA has been deluged by calls from the media wanting comments on this issue. I've done several radio interviews on the subject today. It's nice to know that at least someone listens to these interviews :)
netname: MCT-pmc-04
country: AU
descr: Department of Prime Minister and Cabinet
descr: Intellicentre Gateway Internet Service
admin-c: MCT2-AP
tech-c: MCT2-AP
status: ASSIGNED NON-PORTABLE
changed: cgacis@macquarie.net.au 20050107
mnt-by: MAINT-AU-MCT
source: APNIC
The Sydney Morning Herald is carrying an excellent article on the free-speech implications of changes to law on secondary boycotts, which are dealt with in s 45D of the Trade Practices Act 1974. Secondary boycotts got a lot of attention when Australian wool-growers sued People for the Ethical Treatment of Animals and their supporters, who were advocating boycott of Australian wool. From that article:
No price is too high to pay to protect the Aussie woolgrower. With marked contempt for the effect it would have on freewheeling public debate, Peter Costello has introduced a little bill to clobber campaigners against the bloody business of mulesing sheep. But not only them: his strategy will snare anyone calling for customer boycotts.
So if you're asking Australians not to buy lipstick tested on caged rabbits, rugs woven by Pakistani slaves or suits made with mulesed wool, then pray your boycott calls don't succeed, for the Australian Competition and Consumer Commission is about to be given the power to sue you out of the water if they do.
Gagging public debate with such threats has been an old ambition of the Howard Government.
Not that Canberra talks in such terms. Introducing the Trade Practices Amendment (Small Business Protection) Bill 2007 last week, Costello reaffirmed his Government's "commitment to stand up for small business against thuggery and intimidation. It is vital, both for our economy and our way of life."
But Costello's bill is designed to protect businesses of any size - all the way up to BHP Billiton - not by outlawing intimidation, but by punishing persuasion.
Hurt a business simply by arguing that it's ethically repugnant to buy its products and the commission will be able to step in and sue to recover the company's lost profits. It's quite a service.
Continue reading SMH: Free speech? Not while we're on sheep's back.
News.com.au reports that the keystone cops Australian Federal Police have complained to the Queensland Legal Services Commissioner because Haneef's lawyers are allegedly "us[ing] the media to run their case" which is said to be unprofessional and inappropriate.
Yes, how dare they leak information to the media. That, after all, is the privilege of the executive government. Moreover, it is the privilege of the executive to selectively leak only the parts of the evidence that support their case, while insisting that all other evidence remain confidential. Heaven forbid that the public should know the whole truth of the matter, or that the Minister should be exposed as a fraud who has wilfully misrepresented the facts while pandering to the court of public opinion.
Misrepresenting the facts in court also seems to be another privilege of the executive; witness the "SIM card was in the Jeep" debacle. If not for a contradictory leak in the UK, the government might still be sticking to it's original story. I feel for the government on this point. It's terribly hard for them to arbitrarily detain people when their lies, half-truths, and misinformation keep getting exposed.
The AFP's complaint to the Legal Services Commissioner stinks of rank hypocrisy, and echoes similar threats of disciplinary action against Major Michael Mori, the military lawyer for David Hicks. There seems to be a trend developing here: defend alleged terrorists, by all means, but make the government look stupid at your peril.
Yes, how dare they leak information to the media. That, after all, is the privilege of the executive government. Moreover, it is the privilege of the executive to selectively leak only the parts of the evidence that support their case, while insisting that all other evidence remain confidential. Heaven forbid that the public should know the whole truth of the matter, or that the Minister should be exposed as a fraud who has wilfully misrepresented the facts while pandering to the court of public opinion.
Misrepresenting the facts in court also seems to be another privilege of the executive; witness the "SIM card was in the Jeep" debacle. If not for a contradictory leak in the UK, the government might still be sticking to it's original story. I feel for the government on this point. It's terribly hard for them to arbitrarily detain people when their lies, half-truths, and misinformation keep getting exposed.
The AFP's complaint to the Legal Services Commissioner stinks of rank hypocrisy, and echoes similar threats of disciplinary action against Major Michael Mori, the military lawyer for David Hicks. There seems to be a trend developing here: defend alleged terrorists, by all means, but make the government look stupid at your peril.
The Age online is carrying an article about the ACCC's price fixing action against ANZ bank, which I blogged about a few days ago. Quoting from the article:
ANZ is probably arguing that there are two separate markets: one for "loans direct from banks", in which ANZ competes; and a separate market for "loans via middlemen/brokers" in which Mortgage Refunds compete. Because they're not competitors, what ANZ is alleged to have done isn't price fixing.
Market definition in competition/antitrust cases is, as The Age's article notes, fraught with difficulty. However, I think that the ACCC's argument has a much better chance of success. In economic terms, home loans from banks and home loans via brokers are substitutable; if banks raise their prices, consumers will go to brokers, and if brokers raise their prices, consumers will go to banks. Substitutability is an important indicator that products/services comprise a single market.
ANZ will need to do some fast talking and have eminent economists on hand to support their world view that home loans from banks, and home loans via brokers, are two completely different services that don't compete with each other.
IMHO, the smart money is on the ACCC.
The ACCC's statement of claim and ANZ's response spell out a case that will turn on whether the court believes banks and their brokers operate as distinct and competing entities in a market for "loan arrangement services". ANZ in its only statement regarding the case said the assertion that banks and brokers were competitors was "ill-conceived and misplaced in law" because "ANZ as a lender and Mortgage Refunds as a broker are not competitors".Mortgage Refunds and the ACCC are probably arguing that there is only one market, let's call it "provision of home lending services", in which the ANZ bank and Mortgage Refunds compete with each other.
ANZ is probably arguing that there are two separate markets: one for "loans direct from banks", in which ANZ competes; and a separate market for "loans via middlemen/brokers" in which Mortgage Refunds compete. Because they're not competitors, what ANZ is alleged to have done isn't price fixing.
Market definition in competition/antitrust cases is, as The Age's article notes, fraught with difficulty. However, I think that the ACCC's argument has a much better chance of success. In economic terms, home loans from banks and home loans via brokers are substitutable; if banks raise their prices, consumers will go to brokers, and if brokers raise their prices, consumers will go to banks. Substitutability is an important indicator that products/services comprise a single market.
ANZ will need to do some fast talking and have eminent economists on hand to support their world view that home loans from banks, and home loans via brokers, are two completely different services that don't compete with each other.
IMHO, the smart money is on the ACCC.
Resale Price Maintenance (RPM) is, in a nutshell, a supplier imposing on its customers a minimum price at which they may resell goods or services acquired from the supplier. The result of RPM is to reduce or eliminate price-based competition in the retail market for the goods or services in question. This harms consumers, because they will be forced to pay higher prices than they would pay in a competitive market.
In Australia, RPM is per se unlawful under s 48 of the Trade Practices Act 1974 (and what actually constitutes RPM is defined in Part VIII). In the USA, RPM has been per se unlawful since the 1911 Supreme Court decision in Dr. Miles Medical Co. v. John D. Park and Sons. The rationale for the per se rule is that RPM (and other practices proscribed per se) always or almost always restrict competition, so it is unnecessary to evaluate each case.
There are economic arguments as to why RPM is not, or is not always, anti-competitive. I don't subscribe to those economic theories -- in my view, the harm to consumers from the elimination of competition on price will not be offset by the benefits to consumers and the public that are claimed to result from RPM. Where a supplier can substantiate the benefit to the public that would be created by RPM, and and those benefits outweigh the harm, they can apply to the ACCC for an authorisation to engage in RPM under s 88(8A) of the TPA.
In June this year, the US Supreme Court drank the economic kool-aid (in a 5:4 split) and reversed Dr Miles Medical Co in Leegin Creative Leather Products v PSKS Inc, holding that RPM did not always or almost always restrict competition, and therefore did not meet the criteria for per se illegality, and would instead be evaluated under the rule of reason approach -- that is, each case would be evaluated on its merits to determine whether the net effect was to lessen competition or not.
In Australia, RPM is per se unlawful under s 48 of the Trade Practices Act 1974 (and what actually constitutes RPM is defined in Part VIII). In the USA, RPM has been per se unlawful since the 1911 Supreme Court decision in Dr. Miles Medical Co. v. John D. Park and Sons. The rationale for the per se rule is that RPM (and other practices proscribed per se) always or almost always restrict competition, so it is unnecessary to evaluate each case.
There are economic arguments as to why RPM is not, or is not always, anti-competitive. I don't subscribe to those economic theories -- in my view, the harm to consumers from the elimination of competition on price will not be offset by the benefits to consumers and the public that are claimed to result from RPM. Where a supplier can substantiate the benefit to the public that would be created by RPM, and and those benefits outweigh the harm, they can apply to the ACCC for an authorisation to engage in RPM under s 88(8A) of the TPA.
In June this year, the US Supreme Court drank the economic kool-aid (in a 5:4 split) and reversed Dr Miles Medical Co in Leegin Creative Leather Products v PSKS Inc, holding that RPM did not always or almost always restrict competition, and therefore did not meet the criteria for per se illegality, and would instead be evaluated under the rule of reason approach -- that is, each case would be evaluated on its merits to determine whether the net effect was to lessen competition or not.
Continue reading Resale Price Maintenance and eBay.
EFA has tonight issued the following press release, in relation to a story which appeared in today's Australian IT online.
Electronic Frontiers Australia (EFA) today said that the latest in a long series of embarrassing data security breaches proves that the Commonwealth government can not be trusted to maintain the security of the proposed Health Services Access Card database.
"The government has dozens of databases containing sensitive and personal information about millions of every-day Australians," said EFA Chair Dale Clapperton. "Yet the government is unable to prevent its own
employees from illegally snooping through personal records that they have no business accessing."
An article in today's Australian IT online detailed dozens of cases of public servants inappropriately accessing confidential client records have occurred in recent years in government agencies including the Australian Taxation Office, Medicare Australia, the Child Support Agency, and Centrelink.
"If the government cannot maintain the privacy of information in its existing databases, it has no business establishing a new massive database which will contain sensitive information about each and every Australian," Clapperton continued.
"The Access Card database will inevitably be a target for computer hackers or busy-bodies in the public service that have no respect for other people's privacy."
The exposure draft of the Access Card legislation contains criminal offences that would apply to public servants who inappropriately access the Access Card database, but those offences are punishable only by imprisonment for 2 years, and/or a fine of $13,200. By comparison, most of the offences that would apply to ordinary people are punishable by imprisonment for 10 years and/or a fine of $110,000.
"This disparity in levels of punishment is further proof, if any were needed, that the Commonwealth government is not taking the problem of snooping public servants seriously," Clapperton said.
"Furthermore, the vast majority of public servants who are caught abusing their access to these confidential databases never face criminal charges. They are internally disciplined or allowed to resign as a face-saving measure for the government."
"The Howard government needs to take this problem seriously, and throw the book at public servants who abuse their positions of trust in this way."
The Australian Competition and Consumer Commission announced in a media release that they have instituted proceedings in the Federal Court against ANZ bank over alleged price fixing.
As I understand the case, Mortgage Refund is a mortgage broker, and attracted business by offering to pass on to their clients (i.e. the "refund") some of the commission that was payable to Mortgage Refund from the banks or other lenders. ANZ allegedly threatened to refuse to deal with Mortgage Refund unless they agreed to restrict the amount they passed onto the consumer to $500 or less.
If true, I this conduct would probably contravene s 45 of the Trade Practices Act 1974. ANZ and Mortgage Refund almost certainly compete with each other in the market for home lending services, and the ACCC presumably alleges the existence of a contract, agreement or understanding with the purpose or likely effect of fixing, controlling or maintaining of a discount, allowance or rebate, for services to be supplied by one of the parties. Section 45A would therefore mean that it was deemed to have the purpose, or likely effect, of substantially lessening competition in a market, for the purposes of s 45.
A news.com.au article on the matter says the action will be heard in Brisbane; yet another case I'll be watching with interest.
As I understand the case, Mortgage Refund is a mortgage broker, and attracted business by offering to pass on to their clients (i.e. the "refund") some of the commission that was payable to Mortgage Refund from the banks or other lenders. ANZ allegedly threatened to refuse to deal with Mortgage Refund unless they agreed to restrict the amount they passed onto the consumer to $500 or less.
If true, I this conduct would probably contravene s 45 of the Trade Practices Act 1974. ANZ and Mortgage Refund almost certainly compete with each other in the market for home lending services, and the ACCC presumably alleges the existence of a contract, agreement or understanding with the purpose or likely effect of fixing, controlling or maintaining of a discount, allowance or rebate, for services to be supplied by one of the parties. Section 45A would therefore mean that it was deemed to have the purpose, or likely effect, of substantially lessening competition in a market, for the purposes of s 45.
A news.com.au article on the matter says the action will be heard in Brisbane; yet another case I'll be watching with interest.
Justice Spender of the Federal Court of Australia has today given his judgment in Haneef v Minister for Immigration and Citizenship [2007] FCA 1273. In short, Spender J held that although the Minister applied the "association" test from Minister for Immigration & Multicultural Affairs v Chan [2001] FCA 1552, (which held that even an innocent association was sufficient to satisfy the legislative test), that that was not the correct test and that Chan was wrongly decided.
Interestingly, Spender J observed that had the Minister applied the correct test, it would have been open to him to cancel Haneef's visa on the basis of the evidence before him at the time. That is presumably no longer the case, the charges against Haneef having been dropped and the prosecution's case against him generally descending into a farce that the Queensland Premier accurately compared to the Keystone Cops.
The Commonwealth, predictably, announced within hours of the judgment that they would appeal. I'm glad to see that the Commonwealth has adopted a responsible attitude to this litigation, and took the time to thoroughly read the judgment, analyse its implications, and take legal advice on the prospects of an appeal, before they publicly committed to a course of action. I am, of course, being sarcastic. It would be irresponsible to waste public funds on an appeal to the Full Court simply because the government didn't like the first-instance decision, or because it made them look silly.
Interestingly, Spender J observed that had the Minister applied the correct test, it would have been open to him to cancel Haneef's visa on the basis of the evidence before him at the time. That is presumably no longer the case, the charges against Haneef having been dropped and the prosecution's case against him generally descending into a farce that the Queensland Premier accurately compared to the Keystone Cops.
The Commonwealth, predictably, announced within hours of the judgment that they would appeal. I'm glad to see that the Commonwealth has adopted a responsible attitude to this litigation, and took the time to thoroughly read the judgment, analyse its implications, and take legal advice on the prospects of an appeal, before they publicly committed to a course of action. I am, of course, being sarcastic. It would be irresponsible to waste public funds on an appeal to the Full Court simply because the government didn't like the first-instance decision, or because it made them look silly.
Continue reading Haneef visa decision quashed; Govt to appeal.
The Consumerist reports on a judgment from the US Court of Appeals for the 9th Circuit in Shroyer v New Cingular Wireless Services Inc, which held that a class action waiver and mandatory arbitration clause in a mobile phone contract was unenforceable because it was unconscionable under California law.
This is the latest in a line of cases in which courts have rejected "get out of court free" contract provisions by holding that they were unconscionable. Another such recent case was Gatton v T-Mobile USA Inc.
Linden Labs, operators of the "Second Life" virtual world, suffered a high profile defeat earlier this year in a very similar case - Bragg v Linden Research Inc.
The case that seems to have started this ball rolling was Comb v Paypal Inc, a 2002 decision. Courts seem to be increasingly aware that corporations are abusing their ability to dictate terms in this fashion, in an attempt to "insulate [themselves] contractually from any meaningful challenge to [their] alleged practices" [from Comb v Paypal]
Another recent 9th Circuit decision in Douglas v Talk America Inc held that a company could not unilaterally alter a contract merely by putting an updated version of the contract on its website, despite a provision of the contract that purported to allow them to do so.
Hopefully, these cases will put companies on notice that the days of "we own your soul" contracts are at an end. But I doubt it. It remains to be seen whether statutory schemes against unfair terms in consumer contracts will have that effect.
Readers interested in the topic of unfair terms in electronic contracts may be interested in reading an article I co-authored on that topic: Dale Clapperton and Stephen Corones, 'Unfair Terms in Clickwrap and Other Electronic Contracts' (2007) 35 Australian Business Law Review 152.
This is the latest in a line of cases in which courts have rejected "get out of court free" contract provisions by holding that they were unconscionable. Another such recent case was Gatton v T-Mobile USA Inc.
Linden Labs, operators of the "Second Life" virtual world, suffered a high profile defeat earlier this year in a very similar case - Bragg v Linden Research Inc.
The case that seems to have started this ball rolling was Comb v Paypal Inc, a 2002 decision. Courts seem to be increasingly aware that corporations are abusing their ability to dictate terms in this fashion, in an attempt to "insulate [themselves] contractually from any meaningful challenge to [their] alleged practices" [from Comb v Paypal]
Another recent 9th Circuit decision in Douglas v Talk America Inc held that a company could not unilaterally alter a contract merely by putting an updated version of the contract on its website, despite a provision of the contract that purported to allow them to do so.
Hopefully, these cases will put companies on notice that the days of "we own your soul" contracts are at an end. But I doubt it. It remains to be seen whether statutory schemes against unfair terms in consumer contracts will have that effect.
Readers interested in the topic of unfair terms in electronic contracts may be interested in reading an article I co-authored on that topic: Dale Clapperton and Stephen Corones, 'Unfair Terms in Clickwrap and Other Electronic Contracts' (2007) 35 Australian Business Law Review 152.
CNN is carrying a story on the growing furore concerning the "Real ID" scheme, which, as a "essential weapon in the war on terror", will introduce a de-facto national ID card. Much like the proposed Australia Card, or much like the proposed Health Services Access Card could become. Having a "Real ID" card will not -- officially -- be mandatory (much like the Access Card), but people without one will be subject to significant inconvenience. In the US, you will be unable to fly, enter federal buildings or other federal areas without a passport. In Australia, you will be unable to access public health services that your taxes pay for.
MSNBC also reports on the latest "new level of absurdity" in the US: "behaviour detection officers". These specially trained officers scrutinise the facial expressions of passengers at airports, looking for signs of fear or disgust, which can indicate a potential terrorist. Those identified by these officers will not (yet) be denied boarding based on the adverse facial assessment, but will be subject to additional security measures. Whether this means a hand-inspection of their baggage or a date with a rubber glove, is unclear. The MSNBC article correctly identifies this as absurd and Orwellian, but I think there's a much better quote from Orwell's Nineteen Eighty-Four they could have used:
MSNBC also reports on the latest "new level of absurdity" in the US: "behaviour detection officers". These specially trained officers scrutinise the facial expressions of passengers at airports, looking for signs of fear or disgust, which can indicate a potential terrorist. Those identified by these officers will not (yet) be denied boarding based on the adverse facial assessment, but will be subject to additional security measures. Whether this means a hand-inspection of their baggage or a date with a rubber glove, is unclear. The MSNBC article correctly identifies this as absurd and Orwellian, but I think there's a much better quote from Orwell's Nineteen Eighty-Four they could have used:
It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. A nervous tic, an unconscious look of anxiety, a habit of muttering to yourself--anything that carried with it the suggestion of abnormality, of having something to hide. In any case, to wear an improper expression on your face (to look incredulous when a victory was announced, for example) was itself a punishable offence. There was even a word for it in Newspeak: FACECRIME, it was called.
What do you get when a megalomaniacal anthropomorphic rat acts as a lawyer for a dim-witted anthropomorphic crocodile, suing an anthropomorphic zebra for "wilfully failing to be the food" of the crocodile, and the zebra is represented by a sociopathic anthropomorphic duck who could be the reincarnation of Colonel Walter E. Kurtz from Apocalypse Now?
You get a damn funny and surprisingly insightful story line in one of my favourite online comics, that's what you get. They would make a very interesting discussion point in the undergraduate "Professional Responsibility" unit. The strips reflect beautifully on the excesses of the current US legal system, the public perception of lawyers as ambulance-chasing vermin (in this case, literally true) who would sell out their friends for a dollar, and litigious plaintiffs for whom the legal system is "like lotto, only wid [sic] better odds and no ping-pong balls".
This story line runs from the 12th of August onwards. For reasons which should be obvious, I can't reproduce them all here, but I will give you one teaser:
I highly recommend you check it out.
You get a damn funny and surprisingly insightful story line in one of my favourite online comics, that's what you get. They would make a very interesting discussion point in the undergraduate "Professional Responsibility" unit. The strips reflect beautifully on the excesses of the current US legal system, the public perception of lawyers as ambulance-chasing vermin (in this case, literally true) who would sell out their friends for a dollar, and litigious plaintiffs for whom the legal system is "like lotto, only wid [sic] better odds and no ping-pong balls".
This story line runs from the 12th of August onwards. For reasons which should be obvious, I can't reproduce them all here, but I will give you one teaser:
I highly recommend you check it out.
ITnews.com.au reports that four journalists and one of their family members have sued Hewlett-Packard over the "pretexting" scandal that occurred nearly a year ago.
To briefly recap the scandal, HP suspected that a board member was leaking company secrets to the media. HP engaged private investigators to try and locate the leak, and as part of that investigation -- and apparently with the knowledge of senior HP executives including Patricia Dunn, the chairperson of the HP board -- private investigators impersonated these journalists for the purpose of obtaining copies of the journalist's telephone records from their telephone providers. "Pretexting" is a euphemism for impersonation.
This caused a major scandal at the time; the US being somewhat more respectful of freedom of the press than in Australia. Dunn conceded that pretexting was wrong, but HP defended it as being "not generally unlawful". Congressional hearings were held, legislation was debated. Criminal charges were filed against Dunn and others, but went nowhere; the charges against Dunn were dismissed, three others pleaded no contest in return for a small amount of community service, and the US Department of Justice announced one conviction. A few people (including Dunn) resigned under a cloud, HP paid the state of California US$14.5 million to settle a civil action against the company, and the whole thing generally went away.
I'm happy to see that the journalists who were targeted by HP aren't content to let that be the end of things.
To briefly recap the scandal, HP suspected that a board member was leaking company secrets to the media. HP engaged private investigators to try and locate the leak, and as part of that investigation -- and apparently with the knowledge of senior HP executives including Patricia Dunn, the chairperson of the HP board -- private investigators impersonated these journalists for the purpose of obtaining copies of the journalist's telephone records from their telephone providers. "Pretexting" is a euphemism for impersonation.
This caused a major scandal at the time; the US being somewhat more respectful of freedom of the press than in Australia. Dunn conceded that pretexting was wrong, but HP defended it as being "not generally unlawful". Congressional hearings were held, legislation was debated. Criminal charges were filed against Dunn and others, but went nowhere; the charges against Dunn were dismissed, three others pleaded no contest in return for a small amount of community service, and the US Department of Justice announced one conviction. A few people (including Dunn) resigned under a cloud, HP paid the state of California US$14.5 million to settle a civil action against the company, and the whole thing generally went away.
I'm happy to see that the journalists who were targeted by HP aren't content to let that be the end of things.
Slashdot reports that a website, whyfirefoxisblocked.com, is trying to start a campaign to block all users of the Firefox web browser from accessing websites. Why? Because Firefox supports an extremely useful plug-in by the name of Adblock Plus, which as the name suggests, allows users to block advertising from websites.
Why is this bad? According to whyfirefoxisblocked.com:
In a 2002 interview with Jamie Kellner, chairman and CEO of Turner Broadcasting (a company that controls a number of cable TV channels, including CNN, and a part of Time Warner) said that the increasing penetration of PVRs (Personal Video Recorders, e.g. Tivo, many of which allow you to skip advertising) was not good for his industry. When asked why, he responded:
The whyfirefoxisblocked.com page links to a brief but interesting blog posting suggesting that blocking advertising is an infringement of copyright, and that the makers of Adblock Plus could be liable for contributory infringement. Yet another issue to explore in a future blog posting...
Why is this bad? According to whyfirefoxisblocked.com:
- blocking advertising "is an infringement of the rights of web site owners and developers";
- website operators have the right to insist that users of their website view advertising;
- accessing those websites while blocking the ads is "no less than stealing";
- blanket ad-blocking is "theft";
- the makers of Adblock Plus "refuse to allow website owners control over their own intellectual property";
- etc
In a 2002 interview with Jamie Kellner, chairman and CEO of Turner Broadcasting (a company that controls a number of cable TV channels, including CNN, and a part of Time Warner) said that the increasing penetration of PVRs (Personal Video Recorders, e.g. Tivo, many of which allow you to skip advertising) was not good for his industry. When asked why, he responded:
Because of the ad skips.... It's theft. Your contract with the network when you get the show is you're going to watch the spots. Otherwise you couldn't get the show on an ad-supported basis. Any time you skip a commercial or watch the button you're actually stealing the programming.Everything old is new again. It will be interesting to see if this campaign gains any serious traction. It could just be a troll. In any case, the technical countermeasures that they suggest site owners take could be trivially circumvented. I wonder if they will then rely on the anti-circumvention provisions of the DMCA to help their cause? If this campaign is serious, and spreads, it could lead to a real copyright bunfight.
The whyfirefoxisblocked.com page links to a brief but interesting blog posting suggesting that blocking advertising is an infringement of copyright, and that the makers of Adblock Plus could be liable for contributory infringement. Yet another issue to explore in a future blog posting...
The Commonwealth Attorney-General Phillip Ruddock has issued a press release (not yet available online) as follows:
ACTION ON ALLEGED FILM PIRACY OF THE SIMPSONS
An investigation in relation to alleged piracy of The Simpsons Movie, demonstrates the Government is serious about protecting creative works Attorney-General Philip Ruddock said today.
Mr Ruddock said the government recently made significant changes to copyright laws introducing a range of measures including the ability to track and recover proceeds of serious copyright crimes, and strengthening evidential presumptions in copyright proceedings.
"Australia has been at the forefront of copyright law reform to ensure that law enforcement and industry have the necessary tools to tackle piracy at all levels", Mr Ruddock said.
"To support the legislative changes, the Government has provided the Australian Federal Police and the Commonwealth DPP with $12.4 million over two years, for investigating and prosecuting serious and complex intellectual property crime, and to pursue proceeds of such crimes."
"Film piracy doesn't only hurt Hollywood, it hurts Australia's film makers, businesses, workers and consumers," Mr Ruddock said.
A search warrant was executed in Sydney yesterday by the AFP following the receipt of information from the Australian Federation Against Copyright Theft (AFACT). As a result a 21 year old man will appear in a Sydney court in October.
If any member of the public has any information related to copyright piracy, they should contact the Australian Federal Police or their local State police.
Note: AFACT has a nationwide 24 hours a day hotline that enables the reporting of film copyright theft: 1800 251 996 and an email contact facility through http://www.moviepiracy.org.au
I take issue with a number of claims made by Mr Ruddock. Setting aside the changes in relation to evidential presumptions (I think it safe to assume that 20th Century Fox would have little difficulty establishing that they own the copyright which subsists in the cinematograph film in question) and the tracing of proceeds (I think it safe to assume that there are none in this case), let's compare the "new" criminal offences with the "old" criminal offences and see whether Mr Ruddock's "significant changes" would make any difference to how this case plays out.
Continue reading Ruddock on Simpsons bootlegging and recent criminal copyright changes.
News.com.au reports that a Sydney man is facing criminal charges because he allegedly made a "boot-leg" recording of the Simpsons movie using a mobile phone, and then uploaded it to "a US global streaming website" - whatever that means. I'm guessing they're referring to Bittorrent or some other P2P technology; "youtube" having entered the popular lexicon, if the bootleg had been put on youtube, I imagine they would have just said so.
The Australian Federal Police are said to have confirmed that they searched the man's house "in relation to allegations of criminal breaches of intellectual property law." The article reports that computer equipment was siezed and that the man faces "charges related to distributing and infringing copyright material and possessing a device for doing so."
This article raises a number of interesting issues...
How did AFACT (the "Australian Federation Against Copyright Theft") and/or the police identify this individual as the alleged uploader? Even if they had his IP address, it could have been anyone in his household or with access to his computer that allegedly uploaded the bootleg copy.
Why are the "infringement notice" provisions that were introduced last year not being used in this case? It could be that the "guidelines" for enforcement of those provisions have not yet been made (or, at least, published), but I'm guessing that AFACT and the relevant copyright holders want to throw the proverbial book at this individual. An infringement notice would only allow for a fine of $1320 and forfeiture of the hardware involved in the infringement. By using the indictable offence provisions, the maximum penalty is 5 years jail, or a fine of $60,500, or both.
Given that AFACT appear to be scapegoating this individual as being responsible for all online "piracy" of the Simpsons movie, I imagine that they will be pushing for serious jail time. It will be interesting to see if there is a repeat of the events in the "mp3wmaland" case, a criminal prosecution of three university students in Sydney in 2003. In that case, counsel representing the copyright holders sought to make submissions on sentencing, and to recover the costs of their privately-conducted investigation from the defendants - and were soundly rebuffed by the court. The defendants in that case received significant -- but suspended -- jail terms, leading the then-head of MIPI ("Music Industry Piracy Investigations") Michael Speck to describe the judgment as "banana republic stuff".
It is also interesting that (if the news.com.au article is correct), the individual under investigation faces an additional charge for possessing a "device". The untested device provisions in s 132AL of the Copyright Act 1968 were controversial when introduced, and are farcically over-broad. I find it bizarre that possession of a mobile phone with intent to use it to infringe copyright should be a criminal offence punishable by 5 years imprisonment. It's not as though it was equipment designed specifically for producing infringing copies. Section 132AL will no doubt feel my wrath in a future posting.
I'll be watching this case with interest.
[Update: The Sydney Morning Herald now has a story on this issue, and AFACT have a press release [.doc file] online.]
The Australian Federal Police are said to have confirmed that they searched the man's house "in relation to allegations of criminal breaches of intellectual property law." The article reports that computer equipment was siezed and that the man faces "charges related to distributing and infringing copyright material and possessing a device for doing so."
This article raises a number of interesting issues...
How did AFACT (the "Australian Federation Against Copyright Theft") and/or the police identify this individual as the alleged uploader? Even if they had his IP address, it could have been anyone in his household or with access to his computer that allegedly uploaded the bootleg copy.
Why are the "infringement notice" provisions that were introduced last year not being used in this case? It could be that the "guidelines" for enforcement of those provisions have not yet been made (or, at least, published), but I'm guessing that AFACT and the relevant copyright holders want to throw the proverbial book at this individual. An infringement notice would only allow for a fine of $1320 and forfeiture of the hardware involved in the infringement. By using the indictable offence provisions, the maximum penalty is 5 years jail, or a fine of $60,500, or both.
Given that AFACT appear to be scapegoating this individual as being responsible for all online "piracy" of the Simpsons movie, I imagine that they will be pushing for serious jail time. It will be interesting to see if there is a repeat of the events in the "mp3wmaland" case, a criminal prosecution of three university students in Sydney in 2003. In that case, counsel representing the copyright holders sought to make submissions on sentencing, and to recover the costs of their privately-conducted investigation from the defendants - and were soundly rebuffed by the court. The defendants in that case received significant -- but suspended -- jail terms, leading the then-head of MIPI ("Music Industry Piracy Investigations") Michael Speck to describe the judgment as "banana republic stuff".
It is also interesting that (if the news.com.au article is correct), the individual under investigation faces an additional charge for possessing a "device". The untested device provisions in s 132AL of the Copyright Act 1968 were controversial when introduced, and are farcically over-broad. I find it bizarre that possession of a mobile phone with intent to use it to infringe copyright should be a criminal offence punishable by 5 years imprisonment. It's not as though it was equipment designed specifically for producing infringing copies. Section 132AL will no doubt feel my wrath in a future posting.
I'll be watching this case with interest.
[Update: The Sydney Morning Herald now has a story on this issue, and AFACT have a press release [.doc file] online.]
Welcome to my blog. There are many like it, but this one is mine.
Inspired by the successful and well-regarded blogs of people such as Peter Black, Kim Weatherall, and others, this will hopefully be a place to share my thoughts on law, policy, and current events in areas such as intellectual property, the Internet, civil liberties, censorship, privacy, and competition and consumer protection law.
Although I wear many "hats" from time to time, the contents of this blog and the viewpoints expressed herein are my own.
Inspired by the successful and well-regarded blogs of people such as Peter Black, Kim Weatherall, and others, this will hopefully be a place to share my thoughts on law, policy, and current events in areas such as intellectual property, the Internet, civil liberties, censorship, privacy, and competition and consumer protection law.
Although I wear many "hats" from time to time, the contents of this blog and the viewpoints expressed herein are my own.
