December 2007 Archives
Today's Sydney Morning Herald has an editorial piece on the complaint against Justice Adams which I blogged about yesterday. It reads, in part:
AUSTRALIA'S security establishment, having been weighed in the balance and found wanting, now wants to place its heavy hand on one side of the balance, to tilt it in its favour. That is the conclusion Australians would be entitled to draw from yesterday's Herald report that the head of the federal Attorney-General's Department has complained to the NSW Judicial Commission about Justice Michael Adams's verdict in the case of Izhar ul-Haque. As we have already stated, the decision of Justice Adams of the NSW Supreme Court in the ul-Haque case showed the legal system operating as intended. His judgment revealed that Australian Security Intelligence Organisation was using the charges against Mr ul-Haque as a threat to induce him to become their spy. Justice Adams was rightly scathing about the illegality of the ASIO agents' behaviour during Mr ul-Haque's arrest and interrogation. It appears that His Honour's decision, and the clarity of his views, forcefully expressed, about their cavalier approach to due process, have perturbed the security establishment - not just ASIO but also the Federal Police and, it appears, senior bureaucrats in the Attorney-General's Department, which oversees both agencies.
They appear, though, not to be worried, as they should be, by content of the judge's criticisms, but by the fact that he dared to make them at all. Instead of insisting Australia's security agencies observe the law, the head of the Attorney-General's Department, Robert Cornall, is seeking to punish the judge who pointed out how they had broken it. Is this an attempt to cow the judiciary, in security-related cases, into toeing the line and suspending the rules in the interest of national security? It would not be surprising if it were. The Commissioner of the Federal Police, Mick Keelty, has already suggested courts need to change their attitude to evidence if crimes, particularly acts of terrorism, are to be prevented - rather than punished after they have happened.
The Sydney Morning Herald reports that 'Australia's top legal bureaucrat', the secretary of the Attorney-General's Department, had made a formal complaint to the Judicial Commission of NSW against Justice Michael Adams.
Adams J is the judge who previously held that two ASIO agents had unlawfully kidnapped and falsely imprisoned a young Sydney medical student who was suspected of terrorism offences.
This comes after the head of ASIO publicly defended the behavior of the officers involved 'by saying the agency has had to adapt to new laws after September 11.' Stuff and nonsense. Adams J held that the ASIO officers knew what they were doing was illegal and they did it anyway.
I'm not surprised that O'Sullivan is defending the jackbooted thugs he employs, but I am surprised that he hasn't come up with some more plausible excuses. Playing the 9/11 card is just weak.
Adams J is the judge who previously held that two ASIO agents had unlawfully kidnapped and falsely imprisoned a young Sydney medical student who was suspected of terrorism offences.
This comes after the head of ASIO publicly defended the behavior of the officers involved 'by saying the agency has had to adapt to new laws after September 11.' Stuff and nonsense. Adams J held that the ASIO officers knew what they were doing was illegal and they did it anyway.
I'm not surprised that O'Sullivan is defending the jackbooted thugs he employs, but I am surprised that he hasn't come up with some more plausible excuses. Playing the 9/11 card is just weak.
A very merry cat-mess to all my friends and readers, from me, Arbie, Jinx and Poppy...
The Sydney Morning Herald reports that recently declassified documents show that former FBI Director J Edgar Hoover submitted a plan to the White House, 12 days after the Korean war began, to suspend habeas corpus and arrest 12,000 people whom he suspected of disloyalty, and put them in 'permanent detention' in military prisons.
97% of the people on the list were American citizens. The arrests were to be proclaimed by then-president Truman to be necessary to 'protect the country against treason, espionage and sabotage.'
Hoover obviously wasn't a big fan of the bill of rights.
97% of the people on the list were American citizens. The arrests were to be proclaimed by then-president Truman to be necessary to 'protect the country against treason, espionage and sabotage.'
Hoover obviously wasn't a big fan of the bill of rights.
News.com.au reports that Chuck Norris has sued publisher Penguin and others over a book compiling some of the non-sensical purported facts about him that circulate on the Internet, such as 'Chuck Norris's tears cure cancer. Too bad he has never cried' and 'Chuck Norris does not sleep. He waits.'
The lawsuit alleges that 'some of the 'facts' in the book are racist, lewd or portray Mr Norris as engaged in illegal activities' and that the 'defendants have misappropriated and exploited Mr Norris's name and likeness without authorisation for their own commercial profit.'
The lawsuit alleges that 'some of the 'facts' in the book are racist, lewd or portray Mr Norris as engaged in illegal activities' and that the 'defendants have misappropriated and exploited Mr Norris's name and likeness without authorisation for their own commercial profit.'
Another judgment from the Federal Court of Australia today makes for interesting reading, especially if you're a software developer. The case is Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2007] FCA 2054.
The case involved the copying of two Javascript class files:
The programming code in these files provided relatively trivial functionality for a Content Management System (CMS) developed by the applicant. When the second respondent (a former employee of the applicant) needed to implement similar functionality in a similar application, they copied these two class files from the website of one of the applicant's clients, and adapted those files to their needs. The applicant sued under various causes of action, including infringement of copyright, breach of confidence, breach of contract, and improper use of information gained during employment, under the Corporations Act.
The two significant questions for the copyright claim were:
Things were looking pretty good for the applicant at this point, but the wheels came off their copyright case on evidentiary issues -- they couldn't establish that the respondent had copied the version of files pleaded (from that particular client's website), as opposed to earlier or later versions from another site.
Jessup J then considered whether the respondent had infringed the copyright in the CMS as a whole by reproducing a substantial part of it. Qualitatively and quantitatively (the two files accounted for 0.22% of the lines of code in the whole CMS), Jessup J held that the two files were not a substantial part of the CMS.
This decision could have implications for code reuse. Where bits of code are of insignificant size compared against the whole program, and of trivial functionality and originality, they would probably not be a 'substantial part' of the whole program, and could be copied without infringing copyright. On the basis of this decision, if a part of the code is significantly modular and discrete to be viewed as a 'set of instructions' (perhaps a function, or a class, especially if contained in a separate file), and the code is functional in the sense that it can be used 'to bring about a certain result' (such as, perhaps, a sort algorithm), then they can't be copied without infringing copyright, as they are 'computer programs' in their own right, even if they are an insubstantial part of a larger computer program as the term is commonly known.
[Update: Thanks to Dave C for pointing out that the title of this posting originally referred to the files as being 'Java' files instead of 'Javascript']
The case involved the copying of two Javascript class files:
http://www.hradvantage.com.au/_script/CDAITable.js (the 'table file')
http://www.hradvantage.com.au/_script/CDAIEditor.js (the 'editor file')
The programming code in these files provided relatively trivial functionality for a Content Management System (CMS) developed by the applicant. When the second respondent (a former employee of the applicant) needed to implement similar functionality in a similar application, they copied these two class files from the website of one of the applicant's clients, and adapted those files to their needs. The applicant sued under various causes of action, including infringement of copyright, breach of confidence, breach of contract, and improper use of information gained during employment, under the Corporations Act.
The two significant questions for the copyright claim were:
After considering the statutory definition of 'computer program' (a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result), and discussing the history of the definition and relevant authorities, Jessup J concluded that the files fit within that definition -- as sets of statements or instructions -- and therefore each file was a separate literary work in which copyright subsisted. His Honour said at [39]:
- Whether the two files were 'computer programs' within the meaning of the Copyright Act 1968, or whether they were merely components of the CMS, which was the computer program; and
- Whether, if the files were not 'computer programs' in their own right, the respondent reproduced a 'substantial part' of the computer program that was the CMS.
The definition requires me to accept as a computer program any set of statements or instructions which is used to bring about a certain result. I consider that the instructions in the table file and the editor file were a set within the terms of the definition. Those files were discrete manageable entities. Either could be downloaded and used as such. Either could be included in, or excluded from, a CMS, depending on the developer's requirements. Each added functionality, in the sense that results were made possible by its inclusion. Each file (or either file as the occasion required) was sent as an entity to the user's computer to function co-operatively with the browser's software. The instructions on each file were related by function, by location and by utilisation. On any view, those instructions constituted a set. Further, the results for the bringing about of which the files were used were recognisable and definable. In the case of the table file, for instance, one result might be the highlighting of a line entry in a table. Another result might be the re-ordering of the lines in the table. For each result to be brought about required the participation of HTML software on the browser; but it required also the participation of the relevant instructions in the table file. That is to say, in the words of the definition, the bringing about of the result in question required the use of those instructions. And the same conclusion could be drawn, mutatis mutandis, in the case of the instructions in the editor file.
Things were looking pretty good for the applicant at this point, but the wheels came off their copyright case on evidentiary issues -- they couldn't establish that the respondent had copied the version of files pleaded (from that particular client's website), as opposed to earlier or later versions from another site.
Jessup J then considered whether the respondent had infringed the copyright in the CMS as a whole by reproducing a substantial part of it. Qualitatively and quantitatively (the two files accounted for 0.22% of the lines of code in the whole CMS), Jessup J held that the two files were not a substantial part of the CMS.
This decision could have implications for code reuse. Where bits of code are of insignificant size compared against the whole program, and of trivial functionality and originality, they would probably not be a 'substantial part' of the whole program, and could be copied without infringing copyright. On the basis of this decision, if a part of the code is significantly modular and discrete to be viewed as a 'set of instructions' (perhaps a function, or a class, especially if contained in a separate file), and the code is functional in the sense that it can be used 'to bring about a certain result' (such as, perhaps, a sort algorithm), then they can't be copied without infringing copyright, as they are 'computer programs' in their own right, even if they are an insubstantial part of a larger computer program as the term is commonly known.
[Update: Thanks to Dave C for pointing out that the title of this posting originally referred to the files as being 'Java' files instead of 'Javascript']
This bizarre coincidence has brightened my Friday...
Yesterday, I was writing (for my supervisor) some tutorial questions for the 'e-commerce' tute in a Masters subject on consumer protection laws. One of the questions involved a software program known as 'Microstuff Office'.
One of the questions, as sent to my supervisor (upsub antefiling), read in part:
Today brings news that a recent software update to the Mac the Intuit QuickBooks Pro has, in fact, become deranged and erased the accounting data files of its users. In my question, Microstuff relied on the disclaimer and limitation of liability clauses in the EULA -- I wonder whether Intuit will?
Some of the meanings that dictionary.com gives for 'deranged' (or 'derange') include 'to upset the normal condition or functioning of' and 'to throw into disorder; disarrange'. On that basis, I maintain that 'deranged' was an appropriate word in the context :)
Yesterday, I was writing (for my supervisor) some tutorial questions for the 'e-commerce' tute in a Masters subject on consumer protection laws. One of the questions involved a software program known as 'Microstuff Office'.
One of the questions, as sent to my supervisor (upsub antefiling), read in part:
John returns home and tries to install Microstuff Office ... Because of an inherent design flaw in Microstuff Office, it becomes deranged and erases all the information stored on his computer ...I wasn't really expecting the 'deranged' part to make it into the final form of the question, and the language was in fact moderated by higher authority, but was good for a laugh.
Today brings news that a recent software update to the Mac the Intuit QuickBooks Pro has, in fact, become deranged and erased the accounting data files of its users. In my question, Microstuff relied on the disclaimer and limitation of liability clauses in the EULA -- I wonder whether Intuit will?
Some of the meanings that dictionary.com gives for 'deranged' (or 'derange') include 'to upset the normal condition or functioning of' and 'to throw into disorder; disarrange'. On that basis, I maintain that 'deranged' was an appropriate word in the context :)
The Full Court of the Federal Court of Australia handed down their judgment on the Haneef appeal this morning -- Minister for Immigration & Citizenship v Haneef [2007] FCAFC 203 -- and dismissed the government's appeal with costs.
Quoting from the Court-provided summary of the judgment:
Quoting from the Court-provided summary of the judgment:
The Migration Act specifies various circumstances under which a person does not pass the character test. They include that a person has or has had "an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct".
The Minister suspected that Dr Haneef did not pass the character test because of his "association" with the Ahmeds. [Haneef's second cousins]
Justice Spender considered that the Minister had misinterpreted the character test and had applied a test that was too wide and could encompass links that could not, in his Honour's view, conceivably have had any bearing on the visa holder's character.
On the Minister's appeal to the Full Court the central issue was, again, the scope of "association" and whether the Minister had applied the incorrect test.
It was common ground on the appeal that there had to be some limits on the scope of "association", but there was disagreement between the parties as to what those limits were. The Minister argued for a wide definition, relying upon an earlier decision of a single judge of the Federal Court, and Dr Haneef's counsel argued for a narrower one.
Applying the principles of the common law concerning the interpretation of statutes in circumstances where the rights of individuals may be adversely affected, the Full Court has agreed with Justice Spender that a narrower interpretation of "association" than that applied by the Minister should be taken to reflect the intention of the Parliament when it enacted the character test.
In a unanimous judgment, the Full Court has concluded that the "association" to which s 501(6)(b) of the Migration Act refers is one involving some sympathy with, or support for, or involvement in, the criminal conduct of the person, group or organisation with whom the visa holder is said to have associated. The association must be such as to have some bearing upon the person's character.
Courtesy of The Notorious Ross Wheeler and the forwarded-emails-o'-humor department, I present for your viewing pleasure this (slightly customised) Notice of Seasonal Greeting:
From Dale Clapperton and The Voices In His Head ("the wishor") to you ("the wishee")
Please accept without obligation, implied or implicit, our best wishes for an environmentally conscious, socially responsible, politically correct, low stress, nonaddictive, gender neutral, celebration of the summer solstice holiday, practised within the most enjoyable traditions of the religious persuasion of your choice, or secular practices of your choice, with respect for the religious/secular persuasions and/or traditions of others, or their choice not to practice religious or secular traditions at all.
We wish you a financially successful, personally fulfilling and medically uncomplicated recognition of the onset of the generally accepted calendar year 2008, but with due respect for the calendars of choice of other cultures or sects, and having regard to the race, creed, colour, age, physical ability, religious faith, choice of computer platform or sexual preference of the wishee.
By accepting this greeting you are bound by these terms that:The wishor warrants this greeting only for the limited replacement of this wish or issuance of a new wish at the sole discretion of the wishor. All other conditions, warranties, karmic influences or warm fuzzy feelings, express or implied, are disclaimed, including conditions or warranties that may be implied by Pt V of the Trade Practices Act 1974 (Cth), if the wishor was in trade or commerce, which the wishor is not.
- This greeting is subject to further clarification or withdrawal.
- This greeting is freely transferable provided that no alteration shall be made to the original greeting and that the proprietary rights of the wishor are acknowledged. This greeting implies no promise by the wishor to actually implement any of the wishes.
- This greeting may not be enforceable in certain jurisdictions and/or the restrictions herein may not be binding upon certain wishees in certain jurisdictions and is revocable at the sole discretion of the wishor.
- This greeting is warranted to perform as reasonably may be expected within the usual application of good tidings, for a period of one year or until the issuance of a subsequent holiday greeting, whichever comes first.
Any references in this greeting to "the Lord", "Father Christmas", "Our Saviour", "Rudolph the red nosed reindeer" or any other festive figures, whether actual or fictitious, dead or alive, shall not imply any endorsement by or from them in respect of this greeting, and all proprietary rights in any referenced third party names and images are hereby acknowledged.
It seems that Qantas maintenance people haven't quite figured out the difference between oxygen and nitrogen. The Sydney Morning Herald is reporting that Qantas ground crew at Melbourne airport accidentally filled the oxygen tanks of a Boeing 747 with nitrogen instead of oxygen:
Of course the attachments didn't fit. They're designed not to fit, so that you can't accidentally put nitrogen in an oxygen tank (potentially deadly if oxygen is required), or fill an aircraft's tyres with oxygen instead of nitrogen (would probably explode, either immediately or on the next flight).
Qantas passengers will no doubt be relieved to know that the passenger oxygen masks are (AFAIK) supplied by chemical oxygen generators, and so in the event of depressurisation, the passengers would have oxygen, and remain conscious all the way to the ground, while the cockpit crew would be unconscious and therefore spared the fate of seeing the ground come up and smack them in the face. (to use the words of Gerry Carrol)
The aviation source said: "Qantas took delivery of the new nitrogen cart 10 months ago.
"It looked exactly like the old oxygen cart. When the attachments did not fit they went and took them off the old oxygen cart and started using it."
Of course the attachments didn't fit. They're designed not to fit, so that you can't accidentally put nitrogen in an oxygen tank (potentially deadly if oxygen is required), or fill an aircraft's tyres with oxygen instead of nitrogen (would probably explode, either immediately or on the next flight).
Qantas passengers will no doubt be relieved to know that the passenger oxygen masks are (AFAIK) supplied by chemical oxygen generators, and so in the event of depressurisation, the passengers would have oxygen, and remain conscious all the way to the ground, while the cockpit crew would be unconscious and therefore spared the fate of seeing the ground come up and smack them in the face. (to use the words of Gerry Carrol)
A very recent judgment of the NSW Supreme Court -- Frawley v The State of New South Wales [2007] NSWSC 1379 -- dealt with a defamation case brought by a high school teacher against the NSW government, involving allegedly defamatory remarks about the teacher that were posted on the Internet.
Much of the judgment deals with procedural issues; counsel for the plaintiff attempted at the last minute to put to the jury an alternative basis for liability that had not been pleaded, which the Court did not allow. But the facts of the case, and the jury's finding, are interesting...
The facts, briefly outlined are:
The relevant principles are found in Urbanchich v Drummoyne Municipal Council (1991) Aust Tort Reports 81-127, and was extracted in the Frawley judgment at [4]. In that case, which concerned allegedly defamatory posters displayed at bus stops, Hunt J held that where the defendant:
this was capable of amounting to publication by the defendant, provided that the jury also draws the inference from such conduct that the defendant had in fact accepted a responsibility for the continued publication of the material. In Frawley, the jury held that the defendant had not 'published' the material in this sense, and judgment was given to the defendant.
Much of the judgment deals with procedural issues; counsel for the plaintiff attempted at the last minute to put to the jury an alternative basis for liability that had not been pleaded, which the Court did not allow. But the facts of the case, and the jury's finding, are interesting...
The facts, briefly outlined are:
The plaintiff alleged that the Department of Education published the material on computers owned by it when people accessed the web pages on the school's computer equipment.
- The plaintiff was a teacher at a State high school;
- Unknown persons placed on an Internet site material which the plaintiff claimed defamed him (I imagine this was some kind of 'rate your teacher' type site, but the nature of the material isn't discussed in the judgment);
- He complained to the Department of Education, and the school administration about the allegedly defamatory material, and asked that access to that material from the school's computers be blocked; and
- The Department and the school's administrators failed to block access to the material.
The relevant principles are found in Urbanchich v Drummoyne Municipal Council (1991) Aust Tort Reports 81-127, and was extracted in the Frawley judgment at [4]. In that case, which concerned allegedly defamatory posters displayed at bus stops, Hunt J held that where the defendant:
- Had been notified of the existance of the defamatory material;
- Had been requested to remove the material or to obliterate its contents;
- Had the ability to do so; and
- Had failed within a reasonable period to do so
this was capable of amounting to publication by the defendant, provided that the jury also draws the inference from such conduct that the defendant had in fact accepted a responsibility for the continued publication of the material. In Frawley, the jury held that the defendant had not 'published' the material in this sense, and judgment was given to the defendant.
The Federal Court has sentenced 'His Excellency' David Robert Siminton, 'Governor of the State of Sherwood' (Sherwood being a province of the 'Principality of Camside'), and also a principal (pun not intended) of a financial investment scam (maybe it should be 'Principality of Scamside'?) to jail for contempt.
In Australian Prudential Regulation Authority v Siminton (No 10) [2007] FCA 1814, Siminton was found in contempt in relation to eight charges of unauthorised dealings with funds (received from duped 'investors') which Siminton had been restrained from dealing with. Siminton was sentenced to 12 months jail on each of the eight charges, to be served concurrently, and ordered to pay APRA's costs on a solicitor-client basis.
In Australian Prudential Regulation Authority v Siminton (No 11) [2007] FCA 1815, Siminton was found in contempt for having not paid a fine previously imposed on him by the Full Court of the Federal Court. Siminton was sentenced to 4 months, and ordered to pay APRA's costs on a solicitor-client basis.
In both judgments, the Court ordered that a warrant for Siminton's imprisonment issue, but lie on the court file until further order, Siminton's counsel having indicated that Siminton would appeal in both matters. Siminton was ordered to stay away from points of international departure and to report to police once a week. Perhaps I'm being overly critical, but where someone has been sentanced to jail for 'wilful and contumacious' contempt of previous court orders, it seems a bit naive to think that another court order would stop Siminton skipping the country before he could be locked up?
Siminton's appeal to the Full Court should make for interesting reading. Apparently Siminton has diplomatic immunity -- I'm sure that will get raised.
In Australian Prudential Regulation Authority v Siminton (No 10) [2007] FCA 1814, Siminton was found in contempt in relation to eight charges of unauthorised dealings with funds (received from duped 'investors') which Siminton had been restrained from dealing with. Siminton was sentenced to 12 months jail on each of the eight charges, to be served concurrently, and ordered to pay APRA's costs on a solicitor-client basis.
In Australian Prudential Regulation Authority v Siminton (No 11) [2007] FCA 1815, Siminton was found in contempt for having not paid a fine previously imposed on him by the Full Court of the Federal Court. Siminton was sentenced to 4 months, and ordered to pay APRA's costs on a solicitor-client basis.
In both judgments, the Court ordered that a warrant for Siminton's imprisonment issue, but lie on the court file until further order, Siminton's counsel having indicated that Siminton would appeal in both matters. Siminton was ordered to stay away from points of international departure and to report to police once a week. Perhaps I'm being overly critical, but where someone has been sentanced to jail for 'wilful and contumacious' contempt of previous court orders, it seems a bit naive to think that another court order would stop Siminton skipping the country before he could be locked up?
Siminton's appeal to the Full Court should make for interesting reading. Apparently Siminton has diplomatic immunity -- I'm sure that will get raised.
