October 2007 Archives

The Queensland e-courts website has just been updated to reflect that the notice of discontinuance in the 2Clix v Whirlpool action has finally been filed.  The notice was apparently filed on the 24th -- I'm not sure why it took so long to show up on their website.

Huzzah!

The judgment of the Federal Court in Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 is good for a few laughs, but the website of the purported 'Principality of Camside' is even better.  It's right up there with the last batch of quasi-legal mumbo-jumbo and insanity that I blogged about.

Their declarations of war are particularly good...  Oh, and they claim that by virtue of the fact that the Commonwealth failed to send in the army when they declared war back in March 2003, they won by default and now own Australia (with the exception of the Hutt River Province, of course):

The law relating to the Declaration of War, state, that if the country on which war has been declared (Australia), fails to turn up to battle, the country that declared war (Principality of Camside), is declared the winner. For this legal reason, the "spoils of war," namely the Australian National Estate, Crown Land, roads and freeways, are now the property and responsibility of the Principality of Camside.

These property spoils of war, however, exclude the sovereign lands already declared as the sovereign independent lands of Hutt River Province.

The Principality of Camside is now be legally referred to as Her Majesty's Government of Camside, as another of the consequences of the Principality of Camside having won by default, the war that they declared on the now defunct, abdicated and defeated Commonwealth of Australia.

Nuttier than a case full of squirrels.

The farce that is the Keystone Cops Australian Federal Police's handling of the Haneef matter just won't go away, and it gets worse every time I look at it.  AFP Commissioner Mick Keelty, who was previously vocal in defending the AFP's prosecution of Haneef, and equally vocal in attacking Haneef's lawyers for pointing out the gaping flaws in the AFP's case against him, has now said that he knew the case was weak.

Tony Morris QC has called for Keelty to be sacked, and I agree with him whole-heartedly.  From the news.com.au article:

"At the time, he was very vocal in the press, castigating Haneef's lawyers for disclosing the weaknesses in the prosecution case," Mr Morris said. "Now he admits that he was conscious of those weaknesses all along, and stood by and did nothing when an inaccurate version of the facts was inadvertently presented to the court.

"On his own admission, as the chief law enforcement officer for the commonwealth, he was willing to allow a miscarriage of justice to proceed without taking any step to interfere - and then attacked Haneef's lawyers for their efforts to prevent that miscarriage."

Keelty should have had the balls to quit when it was revealed that the prosecution had given completely false information to the court for the purpose of justifying Haneef's continued detention.  I don't know what Keelty was thinking when he made his most recent admissions -- maybe he thinks it's better to be thought to be a compliant stooge of the commonwealth's 'war against terror', than to be thought ignorant or incompetent.

The fact that Keelty hasn't been sacked over the Haneef debacle is symptomatic of the reprehensible and irresponsible government we've come to enjoy under Howard's watch.  Thankfully the smart money is on that watch ending in about a month's time.  Hopefully Rudd will give Keelty the arse, but I wouldn't put money on it.

Regular readers will remember some earlier dramas when accounting software vendor 2Clix Australia Pty Ltd sued whirlpool.net.au owner Simon Wright for injurious falsehood, and then shortly thereafter announced they would abandon the lawsuit.

Several news websites (including ITwire and idm.net.au) are now reporting that 2Clix has or is about to go into voluntary administration, although the ASIC website doesn't yet reflect this.

You didn't have to be Nostradogbert to see this one coming -- 2Clix's reputation would have been utterly shot as a result of the lawsuit.  At the time, I said:

"Lawsuits are a short-sighted and self-destructive way of dealing with criticism," said EFA Chairperson Dale Clapperton. "As McDonalds and many other companies have learned, suing your critics will cause much more damage and bad publicity than the criticism itself ever would."

Here we have the result.  An own goal indeed.

It has often been said, especially during the days of Joh Bjelke-Petersen's reign, that Queensland "has the best police that money can buy."

The same has often been said of members of the US government, including but not limited to Senator Ernest "Fritz" Hollings -- a/k/a the Senator from Disney -- proponent of legislation such as the Consumer Broadband and Digital Television Promotion Act, which would have outlawed all digital technology which did not contain DRM, and would make the DMCA look like a minor nuisance, by comparison.

It seems that Senator Jay Rockefeller carries on this proud tradition of whoring oneself out for 'campaign contributions'.  It's bad enough when talkback radio hosts become the paid mouthpieces of corporations, but when such behavior extends to legislators, it's unforgivable.  Instead of "cash for comment", the US seem to have a system of "cash for statute".

Wired.com have the full story.

While research something completely work related (no, really!) on Wikipedia, I stumbled across a recent lawsuit against the producers of Family Guy.  In the Family Guy episode 'When You Wish Upon a Weinstein', Peter sings a musical number to the music of 'When You Wish Upon a Star', praying for a Jewish person to save him from his (self-inflicted) financial woes.  Surprisingly, there isn't a video of this on Youtube, but they do have a video of a life performance of the song, but only the last verse.

The copyright owners of 'When You Wish Upon a Star' have sued various Fox companies, the company that produces Family Guy, and the creator of Family Guy, Seth MacFarlane.  CNN have a story here, and the complaint is available here as a PDF.  The lawsuit seeks statutory damages of at least $150k, as well as a permanent injunction and the destruction of all copies of the Weinstein song.

This has got to be, without exception, the absolute dumbest browse-wrap licence I've ever seen.  For those not familiar with the term, a 'browsewrap' licence is a purportedly contractual agreement that many websites like to pretend that you have agreed to be bound by, simply by using their website.  e.g. 'By using this website, you agree we own your soul.'

This particular browsewrap agreement is on the website of Dozier Internet Law PC.  Amongst other things, it claims that viewing the HTML source of their website is an infringement of copyright.  As they purport to be 'The Lawyers for Internet Business', they ought to know that the enforcability of browsewrap agreements is a very grey area, ought to know that many of their intellectual property claims are insane, and generally ought to know better.

Then again, this is the same law firm who has threatened to sue people for posting copies on the Internet of cease-and-desist nastygrams which they've sent out.

Other coverage of this issue is at Slashdot, Techdirt, and the Consumer Law & Policy Blog.

Here's part of one of the stupidest clauses:

Dozier Internet Law, P.C. has a lot of intellectual property on our site. For instance, we are the creators of all of the text on this website, and own the "look and feel" of this website. We also own all of the code, including the HTML code, and all content. As you may know, you can view the HTML code with a standard browser. We do not permit you to view such code since we consider it to be our intellectual property protected by the copyright laws. You are therefore not authorized to do so. In addition, you should not make any copies of any part of this website in any way since we do not want anyone copying us. We also do not allow any links to our site without our express permission, except that you must maintain the link in our Copyright Infringement Warning Button as it is designed. The name "Dozier Internet Law, P.C.", and similar derivatives of it, constitute our trademark and servicemark, and should not be used in any manner without our permission.

So, I guess they'll now be suing me for:

1. Copyright infringement for viewing their HTML.  Which, incidentally, is not valid HTML, and isn't written particularly well either.  e.g. <meta name="KEYWORDS" content="keywords go in here">;
2. Linking to their website without their express permission.  Good luck with that;
3. Copying part of their website, because they don't want anyone copying them.  I wonder how they feel about criticism, ridicule and parody?; and
4. Using their name without their permission.  I'm shaking in my shoes.  Maybe if i say their name backwards, I can banish them to some other dimension?
   

Go on, I dare you.

News.com.au reports that the Commonwealth Office of Film and Literature CensorshipClassification has recently classified the computer game Soldier of Fortune: Payback as 'refused classification', with the result that the game cannot be legally sold or distributed in Australia.

(Yes, it's somewhat oxymoronic that something can be 'classified' as 'refused classificiation')

This result is courtesy of our beloved federal government's policy that if a computer game isn't suitable for a 15-year old, it must be banned.  MA15+ is the highest classification for computer games -- if it is too violent for the MA15+ category, it must be refused classification -- i.e. banned.

Earlier this year, the football game Blitz the League was also refused classification, because characters in the computer game can use steroids to get a performance boost.  Under the classification rules, drug use associated with incentives is an automatic ban.

This stupidity was brought to you by the Commonwealth Department of Condescending Paternalism.

The Chaser seem to have offended a pile of people with this segment [WMV file - warning, pervasive offensive language] from last night's show, singing about the posthumous reputational sanitisation of people including Steve Irwin, Peter Brock, John Lennon, Jeff Buckley, Princess Diana, Stan Zemanek, Sir Donald Bradman, and Kerry Packer.  Belinda Emmet's name came up, but the song cut out after (scripted) protests from the rest of the Chaser crew.  Anna Coren didn't escape unscathed either.

EFA has published the submission that we made to the Commonwealth Attorney-General's Department's RFC on a draft of the Copyright Infringement Notice Scheme Guidelines.  Kim Weatherall made an excellent submission, which covers the big picture issues very well - so EFA kept ours mainly on the EFA-type issues.

Things have been pretty hectic here during the last week.  I've pulled out all the stops to finish a time-sensitive journal article that I hope to have published this year, and my time window to do so is closing rapidly.  Updates will be few and far between until at least the end of this week, or probably early next week.

I thought I would share the following video with you, however.  It is said to depict Miami police officers assaulting several residents of a Miami neighborhood, for no other reason than they were outside their houses while there was a protest against the Free Trade Area of the Americas being held nearby.

I'm not sure exactly where, in the Miami police book of procedures, it instructs officers to walk up to someone, and without a word of warning, spray them in the face with capsicum spray, then tell them to go home, and then strike them with batons before they have a chance to comply.



Still, it could have been worse.  A court hearing is currently underway in the UK over the death of Jean Charles de Menezes, who was summarily executed by British police in 2005 on suspicion of being a suicide bomber.  de Menezes was shot seven times in the head, by two police officers, allegedly over a period of about 30 seconds.  No police officers were charged with any offences as a result of this incident, although the police did search the house of and arrest a journalist who dared to leak results of an inquiry which contradicted the official police version of events.  Despite giving false information to the media, and obstructing an investigation of the shooting by the Independent Police Complaints Commission, police chief Sir Ian Blair escaped unscathed.

Besides de Menezes, the only real casualty of the entire affair is the metropolitan police organisation itself -- who have been charged under workplace health and safety legislation with 'failing to provide for the health, safety and welfare' of de Menezes.  I guess that mistaking him for somebody else and shooting him seven times in the head could fall into that category.

For an article I'm currently writing, I need some information on iPhones, especially what functionality they have or don't have if they're not 'activated'.  If any readers have one and can help me out, please email me.

Telstra have lost round one of their deathmatch against the Federal government, part of their ongoing 'give us the money and nobody gets hurt' campaign:  Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No. 3) [2007] FCA 1567.

Telstra brought this case because the Federal government had the temerity to give public money to a competitor of Telstra, to build infrastructure in regional areas which would have allowed actual competition for the supply of telecommunications services in those areas.  'Tortuous interference with monopoly rent' is an emerging tort in Australia, or so Telzilla would have the courts believe.

They also lost an earlier decision in this same case, over a legal professional privilege issue, so this might be more like round 2, or at least round 1.1.

[Update: imitation is the sincerest form of flattery]

The decision involves details of the tendering process which are, frankly, boring, and construction of provisions of the Federal Court Rules, which you probably aren't interested in.

What is interesting however, is what the decision reveals about Telstra's corporate thought processes, and their motivation for bringing the litigation.  There are quite a few such juicy bits in the decision, including that:

After a seminar today run by Peter Black on the use of 'Web 2.0' in teaching, Peter and Jessica Coates tried to convince me that Facebook is not, in fact, crap, and is substantially better than Myspace; which is presumably, impliedly, crap.  Unless you're a ditzy teenager whose life ambition is to be on Paris Hilton's friends list and thereby gain some kind of incredibly lame validation.  But I digress...

Earlier in the seminar, I'd voiced my objection to the possibility that students might be compelled to become members of some of these 'Web 2.0' services to do mandatory assessment items in some subjects.  This would, of course, require those students to enter into a contractual relationship with those service providers, with associated legal liability and privacy risks.  It might also constitute third line forcing, which is per-se illegal in Australia, but that's a different issue.

The concerns I raised were largely dismissed as paranoia.  So, I got to thinking, exactly what is in the applicable contracts for a service like Facebook?  In this posting, I dissect the Facebook 'Terms of Use'...  You know, that massively long (over 6000 words), complicated, contractual document that nobody ever reads when they sign up.

You read some funny things in court judgments..  Like the recent decision of the Federal Court of Australia in Rural Export & Trading (WA) Pty Ltd v Hahnheuser [2007] FCA 1535, in which two agricultural companies sued an environmental activist (Hahnheuser) for feeding ham to a number of sheep, thereby preventing them from being exported to the middle east for halal slaughter.

They sued under s 45DB of the TPA -- boycotts affecting international trade or commerce.  They lost, despite the fact that Hahnheuser withdrew his instructions to counsel at the last minute and didn't appear at the trial.  Gray ACJ held that the trade and commerce of one of the applicants was not affected, and in any case it was not international trade or commerce.

Significantly, Gray ACJ held that the conduct of Hahnheuser was for the subjective purpose of preventing the suffering and cruelty of sheep in live export, and that such animal welfare concerns fall within the meaning of 'environmental protection' in s 45DD(3) (which deals with permitted boycotts).  Therefore, Hahnheuser's actions could not contravene s 45DB.  Section 45DD not only qualifies the scope of s 45DB, it qualifies the secondary boycott provisions in s 45D -- meaning that animal welfare boycotts (such as PETA ran against Australian woolgrowers because of 'mulesing') will not be actionable under s 45D if this judgment stands.

The Victorian Farmers Federation are saying the decision 'opens the gate for Agricultural Terrorism'.  I thought that agricultural terrorism was cows with guns?

It seems that someone forgot to switch off their mobile phone before they went into the Ipswich Magistrates Court today.  Which wouldn't ordinarily be newsworthy.  Except that the mobile phone in question had a so-called "moan tone" ringtone.  Think Meg Ryan in When Harry Met Sally [NSFW].  The Courier Mail reports that, 'The [ringtone] repeated a woman moaning: "Oh, yeah ... yeah ... oh, yeah ... do it to me."'

Oops.  I bet he won't be making that mistake again.

Wired.com has this story, on testimony in the first US jury trial over alleged copyright infringement by file sharing.

Sony BMG's anti-'piracy' chief, Jennifer Pariser, was asked on the stand whether it was okay if a consumer makes just one copy of a track they've legally purchased. She said no -- that's 'a nice way of saying, "steals just one copy."'

It's official.  Fair use is 'stealing'.  Which is consistent with the content industry's general approach -- i.e. doing anything at all with, at, or within 100 meters of copyright material, which the copyright holders think they ought to be paid for, is 'stealing'.

There ought to be a law...

As I blogged about earlier, the judgment in Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512 was handed down this afternoon.  It is significant for many reasons, including that it is the first precedent in Australia (or elsewhere, so far as I know) dealing with racial vilification/discrimination in forum postings, and because it's the first 'proper' case I've argued in court (not counting two trips to the small claims tribunal against landlords (both won), a minor debt claim against a former employer (won), and a speeding ticket that I once tried to beat (lost)...).

The Collective won, but not for the reasons I was hoping.  The Collective's case was that it had no knowledge of the offensive material until a letter from Silberberg's solicitors arrived.  Gyles J held that an unidentified administrator of the forum did have knowledge of one of the two offensive postings, from a time roughly six months after it was made.  As noted by Gyles J at [34], if the proceedings had been brought in defamation or copyright infringement, that would likely be sufficient to establish liability.

However, under s 18C of the Racial Discrimination Act 1975 (Cth), an act is only unlawful if done because of the race, colour or national or ethnic origin of the person or group concerned.  On this point, Gyles J said at [35]:

However, there is substance to the argument that the failure to remove the offensive material has not been shown to have any relevant connection with race or ethnic origin of the applicant or indeed any other Jewish person as required by s 18C(1)(b) of the Act. The failure of the unidentified administrator to remove the Second Message on and after 1 July 2006 was the clearest case of failure to act. I cannot conclude that such failure was attributable, even in part, to the race or ethnic origin of the applicant. If Dwyer [the president of the Collective] is accepted, the message should have been removed if its offensive nature was understood. However, failure to do so is just as easily explained by inattention or lack of diligence. Drawing the necessary causal connection would be speculation rather than legitimate inference. The same reasoning would be more obviously applicable to the systematic failure to monitor and remove offensive postings. Absent the necessary causal connection there is no breach of Pt IIA [of the Racial Discrimination Act] by the Collective.

Seems to be a judicial application of Hanlon's razor - 'Never attribute to malice that which can be adequately explained by stupidity.'

Gyles J made some comments in the judgment which are somewhat worrying, such as:

• 'the conduct of the Forum in permitting the posting of anonymous messages that are automatically available for display without prior checking is entirely the choice of the Collective' (at [11]); and
• 'The Collective chose to conduct an open anonymous forum available to the world without any system for scrutinising what was posted. The party controlling a website of such a nature is in no different position to publishers of other media.' (at [34])

I'll muse on those quotes sometime in the future.

The end result is that the Collective won, with Silberberg to pay their expenses.  But the result could have been very different.  Silberberg lost against the collective because he sued for racial discrimination, and he couldn't prove that anything the Collective did (or failed to do) was motivated by his Jewish background.

Had Silberberg sued for defamation, he probably would have won -- Gyles J held that the Collective published the offensive messages, and that their anonymous admin had actual knowledge of one of the offensive messages, which would have negated a defence of innocent dissemination.

Where to from here?  Silberberg could appeal.  Or he could sue for something different.  I'm reliably informed that Silberberg is saying he will now sue the Collective for defamation, based on the same events in this case.  I don't like his chances.

EFA has issued a press release which will be available here later tonight.

By way of Jessica Coates and the Creative Commons blog, I have discovered a beautifully produced and remarkably insightful cartoon by the folks at RedHat, to celebrate the beginning of the end of DRM.  While I wouldn't make that claim myself (DRM has failed as a tool of copyright policy, but can produce mucho dinero by creating platform lock-ins), that doesn't detract from the beauty of the cartoon.

My poor little server has not the bandwidth to mirror the cartoon, but it can be downloaded here in .ogg format.  The cartoon and its component pieces have been licensed under a Creative Commons licence and are available here.