Defending Scoundrels

"Easy access at a reasonable cost"

2008-06-24T09:59:19Z

Never let it be said that Finkelstein J lacks a sense of humour: from Direct Share Purchasing Corporation Pty Ltd v AXA Asia Pacific Holdings Ltd [2008] FCA 935:

Companies have always been required to keep registers of their members. The register is a public document which is open for inspection by a member without charge and by any other person upon payment of a fee. When copies are requested they must be provided in exchange for a fee. The provisions dealing with the maintenance of and access to registers are currently found in Chapter 2C of the Corporations Act 2001 (Cth). According to the Attorney-General these provisions were intended to facilitate "rapid and easy access" by the public to a company's register and to do so "at reasonable cost": Second Reading Speech, First Corporate Law Simplification Bill 1994 (Cth) (House of Representatives, Parliamentary Debates (1995) vol HR 199), pp 709, 712. The issue in this case is about the quantum of the fee that can be charged for a copy of the register. Each side engaged senior counsel to put its case. Experts have been called to give their views. Witnesses have been examined and cross-examined. The cost to each party is in the tens of thousands of dollars. So much for easy access at a reasonable cost.

ACCC [proposes] to revoke eBay-PayPal exclusive dealing notification

2008-06-12T20:44:37Z

It's official, the ACCC announced late yesterday that they propose to revoke the exclusive dealing notification made by eBay in relation to their plans to force Australian buyers and sellers to exclusively use PayPal for making payments. The ACCC has issued a draft notice to this effect and is calling for further submissions from all interested parties (i.e. eBay, and the several hundred people who made submissions denouncing eBay's plans) on that draft. They may or may not hold a public meeting known as a "pre-decision conference".

It is not yet clear whether eBay will go ahead with the next phase of their plan, which is due to commence on 17 June. Revocation of the notice will remove eBay's immunity from a s 47 action for their plan.

The ACCC's draft decision also includes a number of other interesting tidbits -- although it doesn't address s 46 issues (i.e. misuse of market power), it says that 'the ACCC considers that eBay holds a substantial degree of power in the supply of online marketplaces in Australia' (at [5.74] and [5.80]) and that eBay's plan allows them to leverage that power into the market in which PayPal operates (at [5.80]). Although the draft doesn't explicitly say 'substantial degree of market power' -- which is an essential element of a s 46 contravention -- I think that is the thrust of what the draft says. This could mean that eBay have bigger problems than just a s 47 contravention. Even if their notification was allowed to stand, it wouldn't give them any protection from a s 46 action.

eBay-PayPal exclusive dealing - what now?

2008-05-29T12:03:37Z

Some time ago, eBay announced a new policy which would force all buyers and sellers in Australia to use PayPal to pay for their purchases. PayPal is a wholly-owned subsidiary of eBay, and charges commissions on transactions processed through it, so this was seen by many as a cynical and anti-competitive money grab.

Recognising the possibility that this new policy would contravene the exclusive dealing provisions in s 47 of the Trade Practices Act 1974, eBay made a 'notification' to the ACCC under s 93 of the TPA. The effect of the notification is that while it remains in force, the conduct described in the notice cannot contravene s 47(1), but if the ACCC is satisfied that the conduct has the purpose or likely effect of significantly lessening competition, and the public benefits of the conduct will not outweigh the public detriments, it can revoke the notification.

The ACCC called for submissions from the public, and invited a number of 'interested parties' to make submissions. I think it's safe to say that they were overwhelmed by the response. The ACCC received over 500 submissions, the majority from irate eBay users. I understand that this is the highest number of submissions that the ACCC has ever recieved on an exclusive dealing notification, by a large margin. A number of organisations also made submissions, including EFA, American Express, the Australian Securities and Investment Commission, the Reserve Bank of Australia, Commonwealth Bank of Australia, and others. Not a single submission supported eBay's proposal.

The ACCC has said they will advise their decision before the new policy is supposed to take effect, on the 17th of June. I think the ACCC is likely to revoke the notification, unless they drink the market-definition koolaid which eBay's tame economists wrote in the annexure to their notification -- an annexure which the public wasn't allowed to see. eBay can then do one of three things:

Back down and abandon the change. I don't think this is likely, especially since eBay apparently want to introduce this policy globally;
Appeal the ACCC's decision to the Australian Competition Tribunal; or
Go ahead with the policy change regardless. Given that the ACCC can't revoke the notification unless they're satisfied that eBay's policy change would contravene s 47(1) of the TPA, eBay would effectively be saying 'we'll see you in court' to the ACCC.

My money is on options 2 and/or 3.

Labor's "fuelwatch" - Will it work?

2008-05-29T11:16:22Z

Earlier today, somebody at QUT asked my opinion about Labor's 'Fuelwatch' scheme, and whether or not it would 'work' - i.e. lower prices and/or improve competition. The scheme itself has been getting a lot of media attention lately.

Fuelwatch is designed to address problems of imperfect information, a/k/a information asymmetry, in relation to pricing in the market for retail petrol. Consumers basically have two ways of finding out the current price of petrol - they can drive past a service station and look, or they can try looking on the Internet. However, not all service station's prices are on the Internet, and there is no guarantee that the prices on the Internet are accurate - the service station in question could have recently increased their prices. In Brisbane, I've seen price hikes at the same service station of up to 15c/l from morning to evening on the same day. Consumers also have no way of knowing what the prices will be in the future, except for general trends such as prices being higher later in the week and on weekends, and holiday periods being generally higher.

Suppliers on the other hand, have better information. They know what their current prices are, and they probably know what the current pricing of their competitors is. They also know what their future pricing will be, and they may even know what the future pricing of their competitors will be. Petrol retailers can -- and in some cases, have -- called their competitors and said things like 'I have spoken to some [other competitors] and they are going up to X cents per litre at Y time. Will you support it?' (i.e. 'will you also raise your prices?'). See, e.g. ACCC v Leahy Petroleum [2007] FCA 794 at [913] where the ACCC sued, alleging unlawful price fixing, and failed because the trial judge found there wasn't a 'contract, arrangement or understanding' to fix prices.

The Fuelwatch scheme, as I understand it, will require all retailers of petrol to notify the ACCC (or whoever runs the scheme) the price at which they will sell petrol on the following day. The prices will be available on the Internet, and the retailers can only sell at that price. If the petrol station down the road is undercutting them, they can't drop their prices until the following day.

Whether Fuelwatch will 'work' will depend on whether the pro-competitive effects of consumers having access to better information about pricing (and thereby being able to make better purchasing decisions), and any consequential price competition which this encourages, will outweigh the anti-competitive effects of retailers being unable to engage in very-short-term discounting, possible stagnation of longer-term discounting (i.e. it has been suggested that the weekly 'cycle' of ~15c/l might drop to ~10c/l or lower), and increased compliance costs being passed onto consumers.

Opinionated as I am, I don't know whether it will 'work' or not. There are too many uncertainties, and I can't even make an educated guess.

ACMA acts on complaints about online coverage of Henson saga

2008-05-29T11:10:23Z

In my previous posting on the Henson saga, I wrote:

Censored versions of some of the photos have been published by News Ltd here. (If they are, in fact, child pornography, then I don't know why News Ltd thinks blacking out breasts makes them any more legal to publish/distribute!)

The Sydney Morning Herald now reports that:

Online photographs used by media websites to report on the investigation into Bill Henson have been referred to the Classification Board, the Minister for Home Affairs, Bob Debus, said.
...
"Several online images of Bill Henson photographs from media websites reporting on the exhibition at the Rosyln Oxley9 gallery in Sydney have been referred to the Classification Board," he said.
They were referred to the board by the Australian Communications and Media Authority (ACMA), which investigates complaints about online content.

Henson prosecution and 2004 amendments to child porn laws

2008-05-26T10:10:52Z

There's been stacks of media coverage over Bill Henson and some of his photographs, which a lot of people, Kevin Rudd included, are falling over each other to denounce as child pornography. That, and calling for Henson, the art gallery managers, and the parents of the models, to be jailed.

This is despite the fact that some of his earlier works, also depicting naked teenagers, have been featured in Commonwealth-supported exhibitions.

Censored versions of some of the photos have been published by News Ltd here. (If they are, in fact, child pornography, then I don't know why News Ltd thinks blacking out breasts makes them any more legal to publish/distribute!)

Some people are speaking out in support of Henson (also here), to varing degrees. Bernadette McMenamin, head of 'Childwise', describes the images as 'sexualised', plays the scare card by claiming that the images in question are 'probably already being circulated on pedophile internet sites', is 'pleased' that the police are taking action, and is waffling about the UN Convention on the Rights of the Child.

Hetty Johnson from Bravehearts -- who was the source of the police complaint which started the ball rolling -- has all but called Henson a paedophile, saying that he 'has a tendency to depict children naked'. The fact that the art gallery's website, which was hosted overseas, could not be shut down by the ACMA, has prompted her to call the ACMA a 'toothless tiger' and say that even works of art should be classified under the national scheme.

Both Bernadette McMenamin and Hety Johnson are also on Senator Conroy's 'Cyber-Safety Consultative Working Group'. Not that it's stacked with people who are likely to be pro-filtering (*cough*), but that's a different story.

I'll make other postings on the merits of the Art/Porn debate, if I have the stomach for it. What I want to discuss here is something that seems to have eluded the attention of the media, and perhaps the police. A SMH article makes reference to s 91G of the Crimes Act 1990 (NSW). It prohibits the 'use of children ... for pornographic purposes', which is defined as where the child is:

'engaged in sexual activity';
'placed in a sexual context'; or
'is subjected to torture, cruelty, or physical abuse (whether or not in a sexual context)'.

The models in question weren't engaged in sexual activity, or being tortured. That leaves 'plac[ing] in a sexual context', which I doubt they were. I don't think the mere fact that they were naked means they're in a 'sexual context'; arguably the intent of Parliament was to require something more than mere nudity. If they wanted to proscribe nudity, they should have said so.

Anyhow, most of the media coverage is suggesting that these pictures may have been taken a long time ago. Apparently, Henson has been producing works of this type for over 20 years. Here's where things get tricky. Even assuming that the photos were taken in NSW, which seems to be in some doubt, s 91G of the Crimes Act 1990 has only been in its current form since 2004. Before 2004, the definition of using a child for pornographic purposes only covered situations where:

'the child is engaged in activity of a sexual nature (for example, actual or simulated sexual intercourse or a striptease) for the purpose of the production of pornography'; or
'the child is in the presence of another person engaged in such an activity for that purpose.'

Fairly clearly, the subjects of these photos aren't 'engaged in activity of a sexual nature', nor are they in the presence of somebody who is. If the photos were taken before the 2004 amendments commenced, I think a prosecution in reliance on s 91G will fall on its arse.

Damages a suitable remedy for Damnation?

2008-05-02T05:25:57Z

You read some strange and funny things in court judgments. Following on from my previous posting involving sheep sabotage, we have another judgment involving Islamic dietary laws.

In Tugcu v Mars Australia Pty Ltd [2008] NSWSC 377, the plaintiffs are a family who have for some time purchased Dolmio brand food products (made by Mars Australia) which bear a halal logo on their label, signifying that the ingredients and recipies for those products were certified by the Halal Certification Authority Australia.

The plaintiffs recently discovered that a certain Dolmio product which bore the halal logo contained white wine as an ingredient and was therefore not halal.

Mars Australia appear to have done a collective mea maxima culpa, blaming an error during the development of the label for a relatively new product. They stopped distributing the affected product, arranged for it to be recalled from stores, informed the Halal Certification Authority Australia, and placed a notice on their website.

The plaintiffs brought an action for contravention of s 52 of the Trade Practices Act 1974 (Cth) and sought an injunction preventing the distribution of the affected product in reliance on s 80 of the TPA.

The Court declined to grant an injunction, holding that the balance of convenience did not favour the granting of an injunction, because of the steps already taken by Mars to address the problem. Gzell J went on to say (at [10]) that:

in light of those steps, damages are an entirely suitable remedy.

I'm not suggesting that an injunction should have been granted. Given that Mars was already dealing with the problem in a fairly comprehensive manner, an injunction would have been of little or no utility. But I think it's somewhat strange that Gzell J would say that damages were an appropriate remedy for contravention of a religious law?

Orgy of media coverage on 'anti-cyber attack' Telecommunications Interception proposal

2008-04-14T01:44:31Z

My phone has been ringing off the hook today, caused by an apparent announcement from the Commonwealth Attorney-General that they intend to extend telecommunications interception powers currently only enjoyed by a select few intelligence, police, and anti-corruption bodies to private sector organisations dealing with 'critical infrastructure' -- which is a much broader list than you might imagine:

The Australian Government defines critical infrastructure as those physical facilities, supply chains, information technologies and communication networks that, if destroyed, degraded or rendered unavailable for an extended period, would significantly impact on the social or economic well-being of the nation or affect Australia's ability to conduct national defence and ensure national security.

I've done a pile of radio interviews this morning and have TV interviews scheduled for this afternoon with Channel 2, 7 and 9 for their nightly news programs. Tune in to see my ugly mug, if you dare!

More blame-shifting from the 'save the children' squad

2008-04-01T01:14:00Z

Hat tip to Pete Black, whose blog brought to my attention a story on the Times Online which he describes as 'a disturbing report on a new form internet censorship being proposed in the UK'. From the article:

Social networking sites will be required to remove material unsuitable for children, such as nude or violent images and comments, within 24 hours of receiving a complaint, under a tough new code for internet safety.

The Byron Review on e-safety, published yesterday, also recommends that search engines such as Google and Yahoo display a "safe search" button prominently on their home page, to filter out potentially harmful material when children search the web.

The report, by the clinical psychologist and writer Tanya Byron, also recommends that websites promoting suicide be closed, using existing laws on assisted suicide. Those that promote self-harm and eating disorders should also come under greater legal scrutiny.

Dr Byron, a mother of two, said yesterday: "Many parents seem to believe that when their child is online it is similar to them watching television. In fact it is more like opening the front door and letting your child go outside to play unsupervised."

Assuming that Byron's analogy is correct, if a parent opens the front door and lets their child go outside to play unsupervised, and something bad happens, is it the fault of the outside world or is it the fault of the parent?

Dumbing down the Internet to a level where it's supposedly 'safe for children' is not the answer. What's worse, is that this is merely one part of a disturbing trend of the abdication of parental responsability to the government. The Internet is supposedly harming children, so instead of parents supervising and educating their children, the government will tame the Internet. Children are too fat, so instead of parents controlling their children's diet, the government will ban advertising of junk food when they're likely to be watching television. The government isn't a babysitter and neither is the Internet!

Oh the irony: cleanfeed.com bans One Nation website as 'hate speech'

2008-03-31T23:55:11Z

The irony of this is palpable.. Labor have adopted the term 'clean feed' to describe their half-baked plan to force ISP-based Internet filtering upon us all. And yet the company peddling Internet filtering software from the website cleanfeed.com has banned the website for registered Australian political party One Nation for containing 'hate speech'. Screenshot:

You can verify this yourself on the cleanfeed.com website, using their 'test a site' facility on the front page.

But, there's a very serious side to this very funny example:

Filtering products are inaccurate. There will always be overblocking and underblocking.
Blacklists and categorisations of websites are subjective. Whether One Nation in fact engages in 'hate speech' is dependant on your point of view and there are arguments for and against.
Government mandated filtering that has effects such as this may run into constitutional problems. We have an implied freedom of speech on political matters in Australia. If a government-mandated filtering system is going to block access to political websites -- especially websites of actual Australian political parties -- it would seem to be succeptable to a constitutional challenge.

Easter: Rabbits, Chocolate, Long Weekend and a New Job

2008-03-20T20:32:47Z

The long-awaited long weekend will hopefully give me a chance to get back into the swing of blogging, which has been somewhat neglected of late due to a higher than normal study load this semester, several bouts of sickness, and other commitments on my time.

The long weekend, by sheer coincidence, also marks the two year anniversary of starting full-time work for the QUT Faculty of Law as a Senior Research Assistant, and the end of that fixed-term appointment. On Tuesday I start work in my new job, still working for the QUT Faculty of Law but this time as a Research Associate, on a different ARC grant. The subtle difference in position titles belies the nature of the change -- Research Associate is an academic position, equivalent to an Associate Lecturer, whereas Senior Research Assistant is a 'professional' position with no further opportunities for advancement. It looks like the last two years of hard work and publications is beginning to pay off :)

More on Third-Line Forcing, Economics, and per-se contraventions

2008-02-29T04:16:40Z

This posting began life as a reply to a comment from Bingo Bango Boingo (BBB) to my previous posting. It got too large, and was promoted to a posting in its own right :)

I'm in Australia, and don't physically have an iPhone or access to one, so my information on their operation is necessarily second-hand. That said, in the course of preparing the article, I solicited information from different people who actually used iPhones in the US to find out more information about the 'activation' process.

My information -- confirmed from more than one source -- is that the iPhone will not work at all (with the exception of making emergency calls) without being activated. That is, no WiFi, no iPod-like functionality, nothing. I don't think that such a situation would have a problem getting over the futurity/compulsion hurdle, unless people are purchasing iPhones for expensive paperweights.

If BBB is correct, and the iPhone functions as everything else except a phone, I still think it would get over the futurity/compulsion issue. If people are buying the iPhone and intending not to activate it (and not to bypass the activation), wouldn't they get the same kind of functionality out of an iPod Touch? I don't know enough about the functionality of each to be able to answer this question, I'm not a Mac expert.

]]>
I think that situation can be distinguished from the iPhone, however. If you consider a PC with an OEM copy of Microsoft Windows, people buy the PC because they want the PC, and Windows is tacked on. It's not as though people want to buy Windows, but the only way they can get Windows is if they buy a PC sold by Dell, because Microsoft will only distribute Windows with Dell computers, in return for ongoing secret commissions.

(If Microsoft did cut such a deal, competition law regulators would have them in court in a heartbeat, because they've obviously got substantial market power in the market for PC operating systems, but I digress)

You may well be right and OEM software bundling is technically 3LF. I don't think that it harms competition, although that of course isn't relevant when considering 3LF. In My Humble Opinion, iPhone-type deals do harm competition. Whether it would be a substantial lessening of competition is open to argument. Professor Gans seems to be of the belief that it doesn't lessen competition, and to the extent that Apple's conduct might contravene the TPA prohibition on 3LF in Australia, the fault lies with the TPA and not with Apple.

This isn't terribly surprising. At the risk of grossly generalising, most economists are against most per-se prohibitions in competition law. Prof Gans would probably also argue against the pro-se prohibition of Resale Price Maintenance in the TPA.

Many economists make arguments in support of practices such as 3LF and RPM that I consider to be unrealistic, in that they argue that vague, often non-tangiable benefits which are said to result from those practices will outweigh the harm that is caused. That harm almost always involves higher prices.

As an example, let's discuss Resale Price Maintenance (RPM) -- it is what it sounds like: a supplier controls or maintains the price at which their goods or services (usually goods) can be resold. ACCC v Navman Australia Pty Ltd [2007] FCA 2061 is a recent example of this type of conduct. The facts in brief were:

Navman produces GPS 'sat-nav' systems;
Navman sold those products through a network of retailers/dealers;
Some of those retailers were 'discounting' the sat-nav systems and selling them at prices that were lower than other retailers;
Some of the retailers who did not engage in 'discounting' complained that their prices were being undercut by the 'discounters';
Navman threatened to terminate (and in two cases, did terminate) their supply arrangements with the 'discounters' unless they increased their prices;
Those threats included communications to all Navman dealers that:

"First off and my biggest gripe within our industry has always been discounting. I just cannot understand the mentality where you have an extremely popular product that is priced under the market with good margin and we still have dealers that discount heavily. There is only one issue that will stop NAVMAN and that's discounting!! I will not allow our great products to be prostituted - take the warning now!"; and
"It is not acceptable to have dealers discounting heavily with a good product that is already well priced. If you can't sell our products without discounting, then I suggest it's time to sell any of our competitors' products - simple as that!!"

Many economists argue that RPM is not anti-competitive, or is at least not usually/always anti-competitive. They suggest that the elimination of price-based competition between retailers promotes competition based on service and support, and that enhanced levels of service and support benefit customers. The guaranteed higher margins on those products also allow retailers to invest in staff training, support facilities, etc. The elimination of intra-brand price competition is also said to promote inter-brand competition.

These are the benefits which may or may not occur in any given situation. The retailers could simply choose to pocket their increased profits and provide nothing extra to the customers. Chicago School economics says that customers will go to the retailers that provide the best service and support, so the other retailers will have to compete on that front to stay competitive. Reality suggests that customers might not particularly care about sales and support, and because they lack perfect information about the levels of sales and support provided by each retailer, will be unable to properly make that decision in any case.

Here's the harm against which these possible benefits must be weighed: the prices will go up.

Navman, in this case, argued in their defence many of the pro-competitive benefits which are claimed to result from RPM:

Navman believed that maintaining higher retail margins would ensure that retailers remained loyal to the Navman brand rather than selling competitors' products. By its actions in policing its resale price maintenance policy, Navman sought to avoid complaints from some of its larger retailers about the prices of other retailers. Navman sought to protect higher margins for dealers, so that dealers could afford to offer the level of customer service that the complexity of its products demanded.

What are your thoughts on the issue? Do you think that if RPM were allowed, that dealers would invest their additional guaranteed profits into providing better levels of customer service, or do you think that things would stay the same but the prices would go up?

[Navman and the ACCC agreed on penalties, which the court accepted despite serious misgivings that they were too low. Navman was fined $1.25M and two executives who were involved were fined $80k and $30k each]

Apple iPhone article and Third-Line Forcing

2008-02-28T11:53:10Z

It's taken me a while to get around to blogging this, because I've been sick as the proverbial dog for the past week -- which is unfortunate, because the media has been going slightly nuts over a journal article of mine which was recently published in the QUT Law and Justice Journal.

Some of the reporting of the article has been less than entirely accurate. News Limited, in their wisdom, have awarded me an honorary doctorate. ("The finding comes from an analysis of the iPhone under Australia's competition laws by Dr Clapperton and fellow QUT law expert Professor Stephen Corones"). I'm not exactly comfortable with them describing me as a 'fellow law expert' with someone as eminent as Professor Corones, either. I am but a 'umble research peon.

The Australian Personal Computer piece is better than most of the coverage, because they actually read the article instead of parroting a story which was distributed on the AAP wire.

Professor Joshua Gans in his blog seems less than impressed with our article. Which is fine, I wasn't expecting everybody to agree with it, but I think he may have missed one of the important points of our article. Professor Gans writes:

The only serious legal issue might come in relation to Third Line Forcing which says that one company cannot sell a product that makes it a condition of sale that the consumer purchase a product from another company. However, Apple need only sell the iPhone through a carrier's retailers and it is likely to be fine. In any case, it can obtain permission from the ACCC for any arrangement it might propose.

At page 362-3 of our article, we advance what is, so far as we know, a novel argument that Apple may still engage in third-line forcing regardless of whether the phone is only sold through a carrier's retailers or not.

A very simplistic explanation of third-line forcing is where a company (Apple) won't sell you something that you want (an iPhone) unless you buy something else (which you may or may not want) from somebody else (who you may or may not want to deal with, like AT&T, or Telstra). So if Apple doesn't sell the iPhone, they're off the hook, right? Not necessarily. Third-line forcing usually involves two contracts -- one between the consumer and each supplier. If Telstra sell the iPhone, and it's technologically tied to Telstra's services, there's no contract with Apple, right?

Wrong. There's the EULA for the iPhone software, which is expressly a contract between Apple and the end-user ("The software ... are [sic] licensed, not sold, to you by Apple Inc.").

The TPA deals with third-line forcing in ss 47(6) [supply on condition] and (7) [refusal to supply unless condition agreed to]. The legislation talks in terms of 'supply' of goods or services. A software licence almost certainly falls within the TPA definition of 'services'.

So, if Apple:

Supply you with services (the licence to use the iPhone software);
On the condition that you acquire services from somebody else (the carrier that's paying them kickbacks)

It's arguably still third-line forcing, notwithstanding that the iPhone itself (i.e. property in the physical device) is not acquired from Apple. This argument is somewhat contrived, and we concede that point in the article, but I maintain it's arguable.

And yes, Professor Gans correctly makes the point that Apple could try and obtain permission (technically, an exclusive dealing notification) from the ACCC. Actually obtaining that permission is not a given. I think that the ACCC might well object, which they can do if they are not satisfied that the public benefits of the third-line forcing would outweigh the public detriment, and I think that balance would be weighing against Apple.

Anyhow, I encourage people to read the article and make up their own mind.

DVD Jon sells out to The Man: Dissecting the doubleTwist EULA, ToS, etc

2008-02-20T00:55:04Z

Slashdot tells us that a company associated with Jon Lech Johansen (a/k/a 'DVD Jon') has released a beta version of software called 'doubleTwist', which will 'free your media', and does various semi-useful things, including circumventing the DRM on Apple iTunes files and converting them to MP3 format.

Of course, use of the doubleTwist software is subject to an End User Licence Agreement, Terms of Service agreement, and Privacy Policy. If/when you read them, a stench of rank hypocrisy lingers in the air, as does a suspicion that DVD Jon has sold out, and taken on many characteristics of the evil corporations he's waged war against. Amongst other things, the agreements allow the use and collection of personal information for delivering targeted advertising (despite their website describing doubleTwist as having 'no adware'), and prohibits users from circumventing DRM used by doubleTwist -- even though doubleTwist circumvents DRM used by other companies.

Relatively non-controversial parts of these agreements are not excerpted for copyright reasons. Not that DVD Jon seems to give a damn about copyright...

]]> doubleTwist EULA:
(the agreement is indented, portions underlined by me for emphasis, my comments are not indented)

IMPORTANT PLEASE READ CAREFULLY

Before reading the articles below, please note the following preliminary terms, which use some of the definitions specified in Article 1 below:

Entering into this Agreement: This End User License Agreement constitutes a valid and binding agreement between SpiceFlow Corporation and You, as a user, for the use of the doubleTwist Software. You must enter into this Agreement by clicking on the ACCEPT button in order to install and use the doubleTwist Software. You hereby agree and acknowledge that this Agreement covers all of Your use of doubleTwist Software, whether it be from this installation or from any other terminals where doubleTwist Software has been installed, by You or by third parties. Furthermore, by installing and continuing to use the doubleTwist Software. You agree to be bound by the terms of this Agreement and any new versions hereof.

Ahhh, it just wouldn't be an electronic contract without the assertion that the licensor can unilaterally change the entire agreement, and you're bound to any such changes. There's an excellent chance that this would invalidate the entire contract -- a contract which leaves essential matters for later determination by one of the parties is incomplete and unenforcable. A contract which purports to allow one party to rewrite the entire contract would probably suffer the same fate.

Electronic Signatures and Agreement(s): You acknowledge and agree that by clicking on the ACCEPT button or similar buttons or links as may be designated by SpiceFlow Corporation to show Your approval of any of the foregoing texts and/or to download and install the doubleTwist Software, You are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the doubleTwist Software. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.

This type of clause I haven't seen before in EULAs. Perhaps they're trying to avoid the requirements in some countries for certain agreements (guarentees, mortgages, contracts for the sale of land, etc) to be made in writing?

Jurisdiction's Restrictions: if You are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and You are in such a jurisdiction and under such age limit, You may not enter into this Agreement and download, install or use the doubleTwist Software. Furthermore, if You are residing in a jurisdiction where it is forbidden by law to offer or use software for internet communication, You may not enter into this Agreement and You may not download, install or use the doubleTwist Software. By entering into this Agreement You explicitly state that You have verified that Your use of the doubleTwist Software is allowed in Your jurisdiction.

Pffft, this is the 5th paragraph of the EULA and I guarantee that most users haven't even read this far, let alone made enquiries to ensure that their use of the software is legal.

[relatively uncontroversial stuff removed]

1.8 doubleTwist: refers to the company established under the laws of Cayman Islands, SpiceFlow Corporation, with its address at PO Box 309GT, M&C Corporate Services Limited, Ugland House, South Church St, George Town, Grand Cayman, Cayman Islands

A Cayman Islands company. That inspires confidence.

[...]

2.3 No Modifications. You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the doubleTwist Software or any part thereof.

How many 'no reverse engineering' clauses has DVD Jon broken to create his anti-DRM products? Probably dozens. Yet he tries to stop the users of his software doing the same thing. Sheer hypocrisy.

2.4 Third Parties. You acknowledge and agree that the doubleTwist Software may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the doubleTwist Software falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with the doubleTwist Software will be subject to you explicitly accepting a license agreement with that third party. You acknowledge and agree that you will not enter into a contractual relationship with doubleTwist or its Affiliates regarding such third party software or technology and you will look solely to the applicable third party and not to doubleTwist or its Affiliates to enforce any of your rights.

'We can bundle malware with doubleTwist, but what it does to your computer is between you and the malware provider'

2.5 New Versions of the doubleTwist Software. doubleTwist, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the doubleTwist Software. You acknowledge and agree that doubleTwist has no obligation to make available to You any subsequent versions of the doubleTwist Software, nor any obligation to continue to support prior versions. You also agree that you may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the doubleTwist Software. Furthermore, You acknowledge and agree that doubleTwist, in its sole discretion, may modify or discontinue or suspend Your ability to use any version of the doubleTwist Software, and/or disable any doubleTwist Software You may already have accessed or installed without any notice to You, for the repair, improvement, and/or upgrade of the underlying technology or for any other justifiable reason, including but not limited to, circumstances where You, in doubleTwist's opinion, are considred to be in breach of this Agreement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, which can be found at www.doubletwist.com/etiquette.html, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons. doubleTwist will not accept any liability in relation to the direct or indirect damages caused by (1) the release and/or the absence of release of new versions of the doubleTwist Software and (2) by the suspension or termination of the license or this Agreement by doubleTwist and/or by You.

Charming. They can disable the software that you've already installed, for pretty much any reason they feel like. Including for 'acting inconsistently with the letter or spirit' of their etiquette policy at the above URL. Except that that document doesn't exist. You get a '404 Not Found' message when you try to access it. I guess it's more fun to make that kind of thing up as you go along. It's funny that they can disable your use of the software if you engage in illegal activities, or 'create problems' or 'possible legal liabilities', given that the main purposes of doubleTwist is the (probably unlawful) copying of copyright material and the (probably unlawful) circumvention of DRM systems.

[...]

4.2 Your Confidential Information and Your Privacy. doubleTwist is committed to respecting Your privacy and the confidentiality of Your personal data. The Privacy Policy that is published on the doubleTwist Website at www.doubletwist.com/privacy applies to the use of Your personal data, the traffic data as well as the content contained in Your communication(s). We do not sell or rent Your personal information to third parties for their marketing purposes without Your explicit consent and we use Your information only as described in the Privacy Policy. We store and process Your information on computers that may be located outside Your country that are protected by physical as well as technological security devices. You can access and modify the information You provide in accordance with the Privacy Policy. If You object to Your information being transferred or used in this way please do not use our services.

Again, the link to their privacy policy given above doesn't work because the page doesn't exist. Didn't anybody proof-read this thing? As will be seen later, the terms of their actual privacy policy give the lie to their claim that they're 'committed to respecting Your privacy'.

[...]

B. You agree to not engage in the use, copying, or distribution of any copyrighted Communications Content beyond allowable fair use including any use, copying, or distribution of Communications Content obtained through the doubleTwist Website and/or Services for any commercial purposes.

Fair use only applies to people in the United States of America.

C. You agree not to circumvent, disable or otherwise interfere with security-related features of the doubleTwist Website and/or Services or features that prevent or restrict use or copying of any Content or enforce limitations on use of the doubleTwist Website and/or Services, and the Communications Content made available by use of the Website and/or Services.

DVD Jon's notoriety is due almost solely to the fact that he has developed numerous tools for circumventing DRM systems. The doubleTwist software itself is a tool for circumventing DRM systems! In summary, they're saying that:

It's OK for DVD Jon to circumvent other people's DRM;
It's OK for DVD Jon to distribute tools for circumventing other people's DRM;
It's not OK for other people to circumvent DVD Jon's own DRM.

It doesn't get much more hypocritical than that.

[...]

6.1 Exclusive Ownership. You acknowledge and agree that any and all IP Rights to or arising from the doubleTwist Software are and shall remain the exclusive property of doubleTwist and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws. You acknowledge and understand that all title and IP Rights in and to any third party content that is not contained in the doubleTwist Software, but may be accessed through use of the doubleTwist Software, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.

Purports to exclude exceptions to copyright.

[...]

8.2 Termination by doubleTwist. Without limiting other remedies, doubleTwist may limit, suspend, or terminate this license and Your use of doubleTwist Software, prohibit access to the doubleTwist Website and delete Your User Account and/or User ID, with immediate effect, if we think that You are : in breach of this Agreement, creating problems, possible legal liabilities, acting inconsistently with the letter or spirit of our policies, which can be found at www.doubletwist.com/etiquette.html, infringing someone else's intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. doubleTwist shall effect such termination by providing notice to You to the email address You have provided, and/or by preventing Your access to the respective User Account. We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.

The non-existant etiquette guide again, and termination for 'creating problems', whatever that means.

8.3 Termination by You. You may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to the courts, provided that You will meet with the conditions as set forth in Article 8.4 below.

In a rather sneaky manner, purports to prevent the user from suing if they elect to terminate the agreement. Probably an unfair term.

[...]

Article 9 Your Representations and Warranties; Indemnification of doubleTwist

Here comes the fun stuff.

[...]

9.2 Indemnification. You agree to indemnify, defend and hold harmless doubleTwist, Affiliates and the doubleTwist Staff from and against any and all liability and costs, including reasonable attorneys' fees incurred by said parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of the doubleTwist Software, or (d) communication spread by means of the doubleTwist Software.

'If we get sued for what you did, you owe us'

[...]

Article 10 Disclaimer of Warranties
[...]
Article 11 Limitation of Liability
[...]

The content of these parts is fairly standard. They disclaim everything and have no liability at all, except to the extent that the law requires otherwise.

Article 12 General Provisions

12.1 New versions of the Agreement. doubleTwist reserves the right to modify this Agreement at any time by providing such revised Agreement to You or by publishing the revised Agreement on the doubleTwist Website. The revised Agreement shall become effective within thirty (30) days of such publishing or provision to You, though you can expressly accept the revised Agreement earlier by clicking on the accept button. The express acceptance by You, or Your continued use of the doubleTwist Software after expiry of the notice period of thirty (30) days, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at www.doubletwist.com/legal/eula. doubleTwist reserves the right to make changes to this Agreement from time to time.

That URL doesn't work. I see a pattern developing here.

[...]

12.5 No Assignment by You. You are not allowed to assign this Agreement or any rights hereunder.

12.6 Assignment by doubleTwist. doubleTwist is allowed at its sole discretion to assign this Agreement or any rights hereunder to any Affiliate, without giving prior notice.

Allowing the supplier to assign without the consumer's consent is another indicator of an unfair term.

12.7 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to any conflict of laws or provisions whether contained in California law or the laws of your current state or country of residence.

12.8 Competent Court. Any legal proceedings arising out of or relating to this Agreement will be subject to the jurisdiction of the courts located within the State of California.

Why on earth would they choose California? Contracts like this one have been taking an absolute pounding from courts in California -- it's probably one of the least favourable jurisdictions. Why not try and make people sue in the Cayman Islands?

[...]

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE DOUBLETWIST SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO DOUBLETWIST THE RIGHTS SET FORTH HEREIN.

Requiring customers to EXPRESSLY ACKNOWLEDGE that the sky is pink with purple polkadots doesn't make it so.

Terms of Service:

There's a lot of stuff in here which is duplicative of what's in the EULA.

[...]

2. Accepting the Terms of Service

2.1 In order to use the Services, you must first agree to the Terms of Service. You may not use the Services if you do not accept the Terms of Service.

2.2 You can accept the Terms of Service by:

(A) clicking to accept or agree to the Terms of Service, where this option is made available to you by doubleTwist in the user interface for any Service; or

(B) by actually using the Services. In this case, you understand and agree that doubleTwist will treat your use of the Services as acceptance of the Terms of Service from that point onwards.

... even if you haven't read the Terms of Service. A browse-wrappy feature.

[...]

2.4 Before you continue, you should print off or save a local copy of this Terms of Service for your records.

Surely they jest. In any case, what's the point of printing it? They claim to be able to change the entire contract on a whim and hold you to the new terms.

[...]

5. Use of the Services by you

5.1 In order to access certain Services, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to doubleTwist will always be accurate, correct and up to date.

Otherwise the advertisers who pay for advertisements targeted on that information might get annoyed.

[...]

5.3 You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by doubleTwist, unless you have been specifically allowed to do so in a separate agreement with doubleTwist.

Interoperability is bad. Heaven forbid that someone should reverse-engineer the doubleTwist protocols and release an interoperable client program that isn't lousy with advertising!

[...]

5.5 Unless you have been specifically permitted to do so in a separate agreement with doubleTwist, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.

How do you reproduce or duplicate a service? Maybe they mean that you can't develop a competing service?

[...]

7.1 For information about doubleTwist's data protection practices, please read doubleTwist's privacy policy. This policy explains how doubleTwist treats your personal information, and protects your privacy, when you use the Services.

7.2 You agree to the use of your data in accordance with doubleTwist's privacy policies.

'Bundled consent', gotta love it. The Privacy Policy is next in line for dissection.

[...]

9.2 Unless you have agreed otherwise in writing with doubleTwist, nothing in the Terms of Service gives you a right to use any of doubleTwist's trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.

So don't criticise us, or else you're infringing our trademarks.

[...]

10. Software updates

10.1 doubleTwist software may automatically download and install updates from time to time from doubleTwist. These updates are designed to improve, enhance and further develop the doubleTwist services and may take the form of bug fixes, enhanced functions, new software modules and/or completely new versions. You agree to receive such updates (and permit doubleTwist to deliver these to you) as part of your use of the Services.

Automatic updates, to add more revenue-generating features, as and when doubleTwist please.

[...]

15. LIMITATION OF LIABILITY

15.1 SUBJECT TO OVERALL PROVISION IN PARAGRAPH 12.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT DOUBLETWIST, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR: [...]

Interestingly, the limitation of liability in the Terms of Service doesn't contain a 'to the extent permitted by applicable law'-type clause. It purports to exclude liability in all circumstances. May contravene s 53(g) of the TPA.

[...]

17. Advertisements

17.1 Some of the Services may be supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.

Now we get to the meaty stuff -- targeted advertising, based on information you provide, searches you make of the service, or any 'other information' about you.

[...]

19. Changes to the Terms of Service

19.1 doubleTwist may make changes to the Terms of Service or Additional Terms from time to time. When these changes are made, doubleTwist will make a new copy of the Terms of Service available at www.doubletwist.com/dt/Legal/Terms.dt and any new Additional Terms will be made available to you from within, or through, the affected Services.

19.2 You understand and agree that if you use the Services after the date on which the Terms of Service or Additional Terms have changed, doubleTwist will treat your use as acceptance of the updated Terms of Service or Additional Terms.

You get 30 days before changes to the EULA, but changes to the Terms of Service can be made with immediate effect.

[...]

20.7 The Terms of Service, and your relationship with doubleTwist under the Terms of Service, shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and doubleTwist agree to submit to the exclusive jurisdiction of the courts located within the State of California to resolve any legal matter arising from the Terms of Service. Notwithstanding this, you agree that doubleTwist shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

A somewhat common provision, but very hypocritical. If you want an injunction against doubleTwist, you have to get it in California, but they can get one against you wherever they like. At least there aren't mandatory arbitration clauses.

Privacy Policy:

The following text is long, dry and painful to read because attorneys have no sense of humor. Basically, we won't spam you with stuffed polar bear gift ideas for your friends, call to sell you newspaper subscriptions, or send your personal data to the Chinese government.

I'm not kidding. Their privacy policy really says that.

doubleTwist is committed to respecting Your privacy and the confidentiality of Your personal data, traffic data and communications content. This Privacy Statement is designed to assist You in understanding how doubleTwist uses and safeguards the information that You provide to doubleTwist while using doubleTwists Communications Service.

Please note that this Privacy Statement is not a binding contract and does not create any legal rights. It is made available to you so that you can make an informed decision about using the doubleTwist website and services after considering the steps doubleTwist takes to protect your private personal information.

What is that supposed to mean? 'Here's a wishy-washy non-binding statement of what we intend to do with your personal information, but if we break it, we never promised to obey it and you can't sue us.'?

The following terms are used in this Privacy Statement, in both the singular and plural forms:

[...]

Passive Information: Information obtained from your computer without any effort on your part, that is used to provide You with the desired functionality of the doubleTwist Software, such as a session ID token, technical and related information, including but not limited to technical information about your computer, system, application software, and peripherals, source and destination addressing information, and the version of the software You are using.

Exactly why do they need this information to provide you with functionality of the software?

Personal Data: any information that doubleTwist possesses relating to an identified or identifiable user of doubleTwist Software, including that individuals Communications Content, Feedback Information, Passive Information, Registration Information, Subscriber Information, Traffic Data and User Profile.

Registration Information: any information provided by You when You register at the Website or install doubleTwist desktop software, including, but not limited to, username and password.

doubleTwist: means under this Privacy Statement, the SpiceFlow Corporation, a company incorporated under the laws of Cayman Islands, having its registered office at 309GT, M&C Corporate Services Limited, Ugland House, South Church St, George Town, Grand Cayman, Cayman Islands, and any SpiceFlow Corporation subsidiaries or affiliated companies.

doubleTwist Software: Any software (or software updates) provided by doubleTwist for Your use, including but not limited to, that desktop software that allows You to communicate and/or exchange data files or Communications Content with other doubleTwist users.

Subscriber Information: Information that is used to verify Your identity and to provide You Subscription Services, including, but not limited to, Your name, billing information and e-mail address.

Traffic Data: any data processed for the purpose of the conveyance of communication or determining bandwidth usage, including, but not limited to, the duration and size of Communications Content and information relating to the recipient(s).

User Profile: any information about the user, filled in by the user on the Website or on the doubleTwist desktop client, that is meant to be shared with other users of the doubleTwist Website or doubleTwist Software, that can be searched for by other doubleTwist users. This includes, but is not limited to, information made available by You that can be shown on another users Friend List. In the future, doubleTwist may provide You with the option of making your media play list public, and should you choose to do so, such information would become part of your User Profile.

Subscription Service: means any subscription service provided by doubleTwist and/or doubleTwists partners, including but not limited to, the doubleTwist Pro service, basic doubleTwist services, and other services which may be offered.

[...]

2. What information does doubleTwist collect?

In order to provide the doubleTwist desktop, doubleTwist gathers and processes the following information.
Registration Information
User Profile
Feedback Information
Passive Information
E-mail addresses
Mobile phone number
Personal Data from other doubleTwist users you have added to your Friends list
In order to provide You with Subscription Service, doubleTwist shall, in addition to the above mentioned information, collect and process the following information.
Subscriber Information
Traffic Data
3. How does doubleTwist use this information and for what purpose?

Our primary purpose in collecting information is to provide You with a safe, smooth, efficient, and customized experience. We may use Personal Data to: provide services and customer support You request; resolve disputes, collect fees, and troubleshoot problems; enforce our Terms of Service; customize, measure, and improve doubleTwist Software, VoIP Service and Website content and layout; inform You about targeted marketing, service updates, and promotional offers (unless You opt out); compare information for accuracy, and verify Your identity; provide other services for You as described when we collect the information.

Should read: 'Our primary purpose in collecting information about you is to make money by selling advertising which is targeted at you, based on whatever information we can find out about you'

4. To whom does doubleTwist transfer Your personal information?

Except as provided below, doubleTwist shall not sell, rent, trade or otherwise transfer any Personal and/or Traffic Data or Communications Content to any third party without Your explicit permission, unless it is obliged to do so under applicable laws or by order of the appropriate authorities.

Exactly what constitutes 'your explicit permission'? Clause 7.2 of the Terms of Service says that 'You agree to the use of your data in accordance with doubleTwist's privacy policies' -- does this constitute explicit permission to sell/rent/trade/transfer this data, or is something more required?

[...]

By using doubleTwist Software or Communications Service You consent to any such transfer of information outside of Your country. As doubleTwist continues to develop its business, doubleTwist might sell or buy subsidiaries or business units. In such transactions as well as in the event that doubleTwist or substantially all of its assets are acquired by a third party, personal information of doubleTwist users will be one of the transferred business assets. We reserve the right to include Your personal information, collected as an asset, in any such transfer to a third party.

At least they're relatively open about this possibility. To the extent that putting it in a pile of legalese that even they describe as 'long, dry and painful to read' constitutes being open about it. If doubleTwist gets bought out by somebody else, all your personal information are belong to them.

Third Party Advertising

The advertisements appearing on doubleTwists website and the doubleTwist desktop may be delivered to you by our advertising partners. Information such as the number of times you have viewed an advertisement (but not your name, address, or other personal information), is used to serve advertisements to you.

Hang on, clause 17.1 of the Terms of Service says that 'advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information' -- there seems to be an inconsistency between the Privacy Policy and the Terms of Use on exactly what information is shared with advertisers or otherwise used to target advertising.

[...]

9. Can this Privacy Statement be modified?

doubleTwist reserves the right to modify the provisions of this Privacy Statement if deemed necessary. We will inform You of these changes by publishing the revised Privacy Statement at www.doubleTwist.com/privacy.html. The revised Privacy Statement shall become effective within thirty (30) days of such publishing, but you can expressly accept the revised statement earlier by clicking on the accept button. You agree that the express acceptance by You, or Your continued use of the doubleTwist Software or Subscription Service after the notice period of thirty (30) days, shall constitute Your acceptance of the Privacy Statement.

So if doubleTwist decide that they want to make money by spaming you with stuffed polar bear gift ideas for your friends, calling to sell you newspaper subscriptions, or selling your personal data to the Chinese government, they can amend the Privacy Policy/Statement, and you're deemed to accept the change after 30 days.

What happens if you don't accept the change?

10. What kind of options do I have regarding my Personal Data?

If You would like to view, correct, complete or remove Your Personal Data, please contact doubleTwist at delete@doubletwist.com. Within a reasonable period of time and upon verification of Your identity, doubleTwist will fulfill Your request, as long as such compliance is consistent with applicable law.

This, at least, seems to be more generous than what some sites such as Facebook allow.

[...]

Listening data
If you choose to download the doubleTwist desktop software, it will analyze your music library, play lists and music sync choices on your computer (even if you are not online). It will then send this information to the doubleTwist servers. This information will then be integrated into doubleTwist to compile statistical data about our users listening habits and portable device sync settings. (We will never publicly disclose your musical preferences without your explicit authorization.)

This is literally hidden at the very end of the Privacy Policy. There's a lot of privacy-invasive stuff that they can do with this information short of 'public disclosure'. For example, what might happen when the doubleTwist software compiles a list of your MP3 collection, sends that information to doubleTwist, and then the RIAA sues doubleTwist to get a copy of this database?

For that matter, would selling this information to spammers constitute 'public disclosure'? The term itself is far too vague for my liking. Also, for a product whose website claims it contains 'no spyware', this behaviour certainly smacks of spyware to me. Perhaps they mean that it isn't bundled with software that spies on you, the main application does that instead?

Here endeth the dissection. While these aren't the worst examples of these types of contracts/agreements that I've seen, they contain many provisions that I consider objectionable. They also contain many provisions the inclusion of which I assert is rank hypocrisy for a product developed by one of the most notorious reverse-engineers and DRM-circumventors of the Internet age. It seems that what's good for the goose is not good for the gander.

Furthermore, it is hypocrisy to say that doubleTwist can suspend or terminate your access to the service and your use of their software if you use it to break the law, when the primary uses of doubleTwist (circumventing DRM and copying copyright material) are likely to be illegal in must countries.

I won't be using the software. I suggest that you don't either.

NSW Judicial Commission reject 'ASIO kidnapping' complaint

2008-01-14T22:44:04Z

The Sydney Morning Herald reports that the NSW Judicial Commission has rejected a complaint made by the head bureaucrat at the AG's department against a NSW judicial officer who found in a judgment that ASIO officers had unlawfully kidnapped and falsely imprisoned a suspect in a 'terrorism' case.

The news article, which gives details on the content of the complaint, says the complaint alleges that Adams J had made 'unjustified findings' which 'reflect adversely and very unfairly on the officers', and that '[t]he lack of concern the judge has shown for due process and natural justice in his comments about the officers' actions stand in complete contrast to the great care he took to determine that the officers had not complied with the applicable requirements.'

The grounds of the complaint are, and always were, bogus. Adams J's findings were entirely justified, there was plenty of evidence to support them. If those findings reflect adversely on the officers involved, then perhaps ASIO should stop kidnapping people. It should also be borne in mind that the identities of the ASIO officers were suppressed in the judgment -- all that the world at large knows is that ASIO officers B14 and B15 broke the law. Only people within ASIO or other government agencies who know the identities of B14 and B15 would know that they are the individuals who kidnapped Ul-Haque, and they're not likely to care.

As for the natural justice claim, even the news media can see the holes in that argument:

Late last year, the ASIO director-general, Paul O'Sullivan, complained the agents had not had a chance to rebut the charges. But the two ASIO officers - known as B15 and B16 - had in fact given evidence to Justice Adams, who found their testimony unconvincing and, at times, untruthful.

They forgot to mention 'evasive', 'dishonest', and the other choice terms used by Adams J to describe the ASIO officer's evidence.