Recently in consumer protection Category
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:
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:
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.
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)
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.
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...
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...
Continue reading DVD Jon sells out to The Man: Dissecting the doubleTwist EULA, ToS, etc.
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 Sydney Morning Herald is reporting that Australian TV stations are using their copyright over programming information (i.e. what shows will be on, and when) to demand concessions from manufacturers of digital video recorders.
The TV stations' representative group Free TV Australia sent a letter to the representative group for DVR manufacturers, saying that:
It's a pity that Australia doesn't have a doctrine of copyright misuse. We do however have a statutory prohibition against misuse of market power -- perhaps the TV stations should read up on the Magill case?
The TV stations' representative group Free TV Australia sent a letter to the representative group for DVR manufacturers, saying that:
Broadcasters are not authorising the use of the programs listing data in PVRs where 'ad-skip' functionality goes beyond a maximum fast forward speed of x60; broadcasters reserve their rights with respect to those suppliers
and that
There you have it. If you want the program data, you have to nobble the fast-forward ability of your products, and use DRM, or they sue you.In addition, the PVR's [sic] which display the EPG [Electronic Program Guide] must employ adequate copy protection measures to prevent the redistribution of free to air content outside the home or on the internet... Broadcasters reserve their rights subject to the Commonwealth Copyright Act 1968, to take legal action at any time for copyright infringement where program listings are used in contravention of these terms.
It's a pity that Australia doesn't have a doctrine of copyright misuse. We do however have a statutory prohibition against misuse of market power -- perhaps the TV stations should read up on the Magill case?
In May, the Federal Court made a default judgment against Nuera Health Pty Ltd, a number of other 'Nuera' companies, as well as Paul Rana and his sons Christopher Rana, and Michael Rana -- Australian Competition and Consumer
Commission v Nuera Health Pty Ltd (In Liquidation) [2007] FCA 695.
The clan Rana and a number of companies involved with them had been engaging in what is probably one of the most contemptible examples of misleading and deceptive, unconscionable, and just plain odious conduct to come before the courts in Australia. The Ranas, through their companies, invented a 'system' of pseudo-medical quackery (including coffee enemas, colonic irrigation, vitamin treatments, fruit juice diets, devices called 'Zen-Chi Massagers', 'Zambroza with mangosteen' and Himalayan Goji juice) which they claimed could cure cancer.
They then sold their alleged 'system' to the families of people who were suffering terminal cancer for tens of thousands of dollars. At least four of their victims died before the court gave its judgment.
It now seems that the Ranas have been harassing the families of their victims who were witnesses against them in these proceedings. To quote Heery J in Australian Competition and Consumer Commission v Nuera Health Pty Ltd (No 2) [2007] FCA 1756:
The clan Rana and a number of companies involved with them had been engaging in what is probably one of the most contemptible examples of misleading and deceptive, unconscionable, and just plain odious conduct to come before the courts in Australia. The Ranas, through their companies, invented a 'system' of pseudo-medical quackery (including coffee enemas, colonic irrigation, vitamin treatments, fruit juice diets, devices called 'Zen-Chi Massagers', 'Zambroza with mangosteen' and Himalayan Goji juice) which they claimed could cure cancer.
They then sold their alleged 'system' to the families of people who were suffering terminal cancer for tens of thousands of dollars. At least four of their victims died before the court gave its judgment.
It now seems that the Ranas have been harassing the families of their victims who were witnesses against them in these proceedings. To quote Heery J in Australian Competition and Consumer Commission v Nuera Health Pty Ltd (No 2) [2007] FCA 1756:
Since [the earlier proceedings] the respondents have persistently harassed the witnesses by sending them strange documents couched in pseudo-legal medieval language, including demands for some $294 million. Understandably, this has caused great distress to the witnesses and has revived their tragic memories.Have these people no shame?
The judgment of the Federal Court in Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608 is good for a few laughs, but the website of the purported 'Principality of Camside' is even better. It's right up there with the last batch of quasi-legal mumbo-jumbo and insanity that I blogged about.
Their declarations of war are particularly good... Oh, and they claim that by virtue of the fact that the Commonwealth failed to send in the army when they declared war back in March 2003, they won by default and now own Australia (with the exception of the Hutt River Province, of course):
Their declarations of war are particularly good... Oh, and they claim that by virtue of the fact that the Commonwealth failed to send in the army when they declared war back in March 2003, they won by default and now own Australia (with the exception of the Hutt River Province, of course):
The law relating to the Declaration of War, state, that if the country on which war has been declared (Australia), fails to turn up to battle, the country that declared war (Principality of Camside), is declared the winner. For this legal reason, the "spoils of war," namely the Australian National Estate, Crown Land, roads and freeways, are now the property and responsibility of the Principality of Camside.Nuttier than a case full of squirrels.
These property spoils of war, however, exclude the sovereign lands already declared as the sovereign independent lands of Hutt River Province.
The Principality of Camside is now be legally referred to as Her Majesty's Government of Camside, as another of the consequences of the Principality of Camside having won by default, the war that they declared on the now defunct, abdicated and defeated Commonwealth of Australia.
Regular readers will remember some earlier dramas when accounting software vendor 2Clix Australia Pty Ltd sued whirlpool.net.au owner Simon Wright for injurious falsehood, and then shortly thereafter announced they would abandon the lawsuit.
Several news websites (including ITwire and idm.net.au) are now reporting that 2Clix has or is about to go into voluntary administration, although the ASIC website doesn't yet reflect this.
You didn't have to be Nostradogbert to see this one coming -- 2Clix's reputation would have been utterly shot as a result of the lawsuit. At the time, I said:
Several news websites (including ITwire and idm.net.au) are now reporting that 2Clix has or is about to go into voluntary administration, although the ASIC website doesn't yet reflect this.
You didn't have to be Nostradogbert to see this one coming -- 2Clix's reputation would have been utterly shot as a result of the lawsuit. At the time, I said:
"Lawsuits are a short-sighted and self-destructive way of dealing with criticism," said EFA Chairperson Dale Clapperton. "As McDonalds and many other companies have learned, suing your critics will cause much more damage and bad publicity than the criticism itself ever would."Here we have the result. An own goal indeed.
For an article I'm currently writing, I need some information on iPhones, especially what functionality they have or don't have if they're not 'activated'. If any readers have one and can help me out, please email me.
After a seminar today run by Peter Black on the use of 'Web 2.0' in teaching, Peter and Jessica Coates tried to convince me that Facebook is not, in fact, crap, and is substantially better than Myspace; which is presumably, impliedly, crap. Unless you're a ditzy teenager whose life ambition is to be on Paris Hilton's friends list and thereby gain some kind of incredibly lame validation. But I digress...
Earlier in the seminar, I'd voiced my objection to the possibility that students might be compelled to become members of some of these 'Web 2.0' services to do mandatory assessment items in some subjects. This would, of course, require those students to enter into a contractual relationship with those service providers, with associated legal liability and privacy risks. It might also constitute third line forcing, which is per-se illegal in Australia, but that's a different issue.
The concerns I raised were largely dismissed as paranoia. So, I got to thinking, exactly what is in the applicable contracts for a service like Facebook? In this posting, I dissect the Facebook 'Terms of Use'... You know, that massively long (over 6000 words), complicated, contractual document that nobody ever reads when they sign up.
Earlier in the seminar, I'd voiced my objection to the possibility that students might be compelled to become members of some of these 'Web 2.0' services to do mandatory assessment items in some subjects. This would, of course, require those students to enter into a contractual relationship with those service providers, with associated legal liability and privacy risks. It might also constitute third line forcing, which is per-se illegal in Australia, but that's a different issue.
The concerns I raised were largely dismissed as paranoia. So, I got to thinking, exactly what is in the applicable contracts for a service like Facebook? In this posting, I dissect the Facebook 'Terms of Use'... You know, that massively long (over 6000 words), complicated, contractual document that nobody ever reads when they sign up.
Continue reading Dissecting the Facebook 'Terms of Use'.
Although the paperwork has yet to be filed, 2Clix has told various media outlets that they are abandoning their injurious falsehood lawsuit against the owner of Whirlpool. 2Clix's solicitors have told Whirlpool they have been instructed to discontinue the action. EFA press release here.
Some of the media coverage of this latest development has been less than accurate and less than fair to Whirlpool. 2Clix, in apparent fit of pique, leaked news of their intent to discontinue the action to several media outlets, before they even confirmed it to Whirlpool.
Initial coverage by one media outlet in particular said that the action had been discontinued (which it had not, and still has not), and implied that Whirlpool was acting dishonestly by not announcing this development (despite the fact 2Clix and their solicitors had ignored Whirlpool's attempts to confirm it) while they allegedly continued to accept donations from the public (despite the fact that Whirlpool had never solicited donations, had actively discouraged people from donating until they knew what their legal bills were likely to be, and most importantly, they removed the donation links off their website when they got an unconfirmed email indicating that 2Clix might discontinue).
Whirlpool published a response to this media speculation.
I don't know what 2Clix's motivation was for this course of action, but it seems consistent with a puerile attempt to smear Whirlpool in the press, which was at least partially successful.
Some of the media coverage of this latest development has been less than accurate and less than fair to Whirlpool. 2Clix, in apparent fit of pique, leaked news of their intent to discontinue the action to several media outlets, before they even confirmed it to Whirlpool.
Initial coverage by one media outlet in particular said that the action had been discontinued (which it had not, and still has not), and implied that Whirlpool was acting dishonestly by not announcing this development (despite the fact 2Clix and their solicitors had ignored Whirlpool's attempts to confirm it) while they allegedly continued to accept donations from the public (despite the fact that Whirlpool had never solicited donations, had actively discouraged people from donating until they knew what their legal bills were likely to be, and most importantly, they removed the donation links off their website when they got an unconfirmed email indicating that 2Clix might discontinue).
Whirlpool published a response to this media speculation.
I don't know what 2Clix's motivation was for this course of action, but it seems consistent with a puerile attempt to smear Whirlpool in the press, which was at least partially successful.
