The Mac and the Law Student

iPhone trade mark snapped up by Apple

2010-02-16T20:42:00.005+10:00

After a squabble with Ci sco Systems for the coveted 'iPhone' trade mark, it appears that Apple now owns the trade ma rk in the US. Of course, no such luck yet with the iPad trade mark.

No problems for Apple in Australia, with the iPhone (with the Apple 'apple') trade mark accepted by IP Australia on the 26 May 2008.

The iPad trade mark looks like it is going to be a little more contentious. A US company, IP Application Development LLC have applied for the trade mark IPAD for amongst other things tablet computers, electronic handheld devices (although there is some suspicion that this company is somehow related to Apple). Apple own the IPAD trade mark, but only for class 9 and in relation to 'electronic information display terminals including electronic information kiosks and public access display apparatuses'.

UWA v Gray: High Court refuses to grant leave to hear appeal

2010-02-15T19:31:00.002+10:00

The High Court have refused to grant special leave to hear an appeal from the full bench of the Federal Court, ruling out the University of WA's hopes of getting their hands on a cancer treatment patent worth millions of dollars.

For those not familiar with the case, I have a brief summary in an older blog post.

iiNet 'copyright infringement' case dismissed: Judge says it's impossible to conclude authorisation of infringement

2010-02-05T17:09:00.006+10:00

I have been following the iiNet case for quite a while now, so I was quite excited to hear that a decision had finally been made. In what many would call a landmark case, the film industry (represented by The Australian Federation Against Copyright Theft (AFACT)) brought an action against iiNet for allegedly authorising their customers to infringe the copyright of various movie studios.

On the 4 February 2010, Judge Cowdroy of the Federal Court of Australia dismissed the case against iiNet, awarding costs to iiNet (estimated to be in the vicinity of $4 million).

Judge Crowdroy based his decision on the fact that iiNet has no practical control over it's customers copyright infringement. He differentiated between the Internet, and Bit Torrent (which while a legitimate way of downloading large files, is often used for the purpose of copyright infringement), noting that iiNet had no control over the use of Bit Torrent.

He concluded that iiNet was entitled to the 'safe harbour' provisions because it had a policy on infringement, even if AFACT did not agree with this policy.

Remember the Borings? Their Google trepass claim may be back on foot

2010-01-30T21:07:00.002+10:00

If not, have a look at an older blog post about the Pennsylvanian couple who sued Google for alleged trespass when photos of their house appeared on Google's Street View. A 3rd U.S. Circuit Court of Appeals has upheld most of the District court judge's ruling, but reversed her decision on the trespass claim.

The Borings have claimed damage for trespass, however Senior U.S. District Judge John R. Padova has said, "When it comes to proving damages from the alleged trespass, the Borings are left to collect one dollar and whatever sense of vindication that may bring, but that is for another day. For now, it is enough to note that they 'bear the burden of proving that the trespass was the legal cause, i.e., a substantial factor in bringing about actual harm or damage' ... if they want more than a dollar."

Trademark issues for Apple: Fujitsu fight for iPad

2010-01-28T20:49:00.001+10:00

It appears that it is not all smooth sailing with the 27 January 2010 introduction of the iPad to the world. In the US, Fujitsu is claiming that they deserve the trademark for the iPad. Fujitsu manufacture a multifunctional device called the iPad. Fujitsu's application for the contentious name was stalled, then abandoned in 2009, however was revived in June 2009. Apple has until the 28 February 2010 to announce whether it will oppose the Fujitsu's application.

Apple faced a similar situation with the iPhone trademark, with Cisco Systems owning the iPhone trademark, which was eventually settled.

Employers don't automatically own employee inventions: Lessons from UWA v Gray

2009-10-20T10:49:00.007+10:00

It might come as a surprise to laypersons that employers don't own employee intellectual property (such as inventions), even if the invention was created in the course of employment. The Patents Act 1990 (Cth) sets out ownership of an invention in s 13, and details who is entitled to a patent in s 15. Neither section expressly states that employees inventions are owned by employers, or entitle employers to patent these inventions. It appears from the Act that the owner of the invention is the person or team of people who performed the intellectual and practical work involved in the development of the invention (see this article for more on patent ownership).

Employers can expressly stipulate in their employee contracts that inventions are owned by the employer. However, employers must be careful not to limit employee activities and freedoms in a way which is considered illegal restraints on trade. Employers can sometimes rely on an implied term giving employers ownership of employee inventions. In Patchett v Sterling Engineering (1955) RPC 21 the House of Lords did imply such a term when the employee was employed to invent, and creating inventions was part of the employees role. This can be interpreted quite narrowly, as it must be an invention for which the employee was paid to invent.

Some employers have argued that a fiduciary duty arises in the course of employment. In VUT v Wilson (2004) 60 IPR 392 the court held that a fiduciary relationship can arise between an employer and an employee. The court found that professional employees, such as professors, do owe a fiduciary duty to the university. Therefore although the university were only partially successful in arguing that the invention was within the scope of the professors' employment, breach of a fiduciary duty meant that the professors held the intellectual property on trust for the university.

In UWA v Gray (No 20) [2008] FCA 49, Gray patented a method for treating liver cancer in his own name, and later transferred these rights to a patent company, and later to a medical company which he later publicly floated. The University of WA where Gray was employed argued that they owned these patents, and therefore were entitled to shares in the Medical company. There was no provision in the employment contract between Gray and UWA regarding intellectual property. University policy was that inventions were to be reported to a 'patents committee', however even if this policy was binding on Gray, the patents committee had long been abandoned.

The UWA then tried to argue that a term was implied into the employment contract that inventions of employees belong to the employer, however they failed to get up on this argument. The court did not accept this argument on the basis that Gray was hired to research, not invent. The court also found that a duty to invent was not congruent with the duty of an academic to publish their work (as this would destroy the patentability of any invention). Furthermore, Gray funded most of his work on the invention in question himself.

The court also did not accept the fiduciary relationship argument. The fiduciary argument was put that Gray had a duty to deal with the property in a way consistent with UWA’s interests. This supposes that UWA is owner of the property. As the court found that UWA does not own the intellectual property, this argument failed.

The university have applied for special leave to appeal to the High Court. It will be interesting to see if leave is granted or not, considering the appointment of French CJ to the High Court (who gave the judgement in the Federal Court before his Honours appointment to the High Court).

I think Gray is a good illustration that employers need to expressly state in employee contracts that IP of employees in the course of their employment belongs to the employer. Employers should also revisit employee contracts regularly to ensure that their IP rights in employee inventions are adequately protected.

Are judges wary of new trade marks? Guylian, Nestle shape marks not distinctive enough

2009-09-11T18:11:00.008+10:00

Following Guylian's loss in the Federal court regarding a 'seahorse' trade mark, Nestle have now lodged an appeal against the decision that the 'four finger' shape of a Kit Kat is not distinctive. The judge thought that the shape was the functional shape of the goods (see Phillips v Remington - here the Australian court found that the shape had to be conceptually different to the goods. Burchett J referred to the judgement of Lord Templeman in Re the Coca-Cola Company (1986) 6 IPR 275, in which he stated 'The word `mark' both in its normal meaning and in its statutory definition is apt only to describe something which distinguishes goods rather than the goods themselves.')

Despite surveys which show that consumers associate the four bars shape to a Kit Kat bar, with Guylian taking similar efforts to show consumer association between the shape and their brand, the court has nevertheless found that these marks are not distinctive enough for consumers to see the link between these shapes and the respective brands.

But these decisions are hard to reconcile with the decision in Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks [2002] FCAFC 273, where it was held that it was allowable to register the shape of the good. In essence, the trade mark did not have to be separate from the good.

Kenman Kandy shape

Is it that judges are wary about conferring monopolies to well known companies like Nestle and Guylian (effectively stopping competitors from using attractive and desirable shapes and colours in their marketing), while less concerned about doing the same for less well known companies, like Kenman Kandy.

Colour is also a new comer to the trade mark world, and is just as controversial as shape trade marks. Cadbury and Darrell Lea have only recently ended a long time battle over a shade of purple, settling out of court (Cadbury has allowed Darrell Lea to use purple in their stores). BP had similar troubles trade marking the colour 'green' as the 'predominant' colour for their petrol stations, with opposition from Woolworths supermarkets.

McDonald's loses trademark appeal after 8 year battle for the 'Mc' prefix

2009-09-10T13:47:00.003+10:00

Malaysia's Federal Court has dismissed an appeal from McDonalds from the Court of Appeal's decision that the use of the prefix 'Mc' by a Malaysian chicken curry chain, McCurry did not amount to infringement (overturning the previous decision of the High Court in favour of McDonalds).

Chief Judge Ariffin Zakaria found that the court had to dismiss the appeal with costs as McDonald's failed to properly frame its questions when challenging the Appeals court's prior decision.

Under the Australian Trademark law, it would be interesting to see how an Australian court would have approached the issue, in light of the decision in McDonalds v Macri Fruit distributors
(2000) AIPC 91-583, where the trade mark office found that the use of 'Mc' was deceptively similar to the family of 'Mc' marks owned by McDonald's (the opponent was attempting to use McSalad and McFresh).

Sony Music raided for 'stolen' songs: Unauthorised use may lead to mammoth damages

2009-09-09T10:28:00.006+10:00

Sony music entertainment Mexico has been raided after one of their ex-artist's complained that Sony's use of their music was unauthorised. Alejandro Fernandez signed with Sony in 1998, before leaving in 2008, in which time he recorded 7 albums. During this time, he recorded numerous songs which were never included in the 7 authorised albums, which Sony then sold on an 8th 'unauthorised' album. The Feds seized 6,397 music, videos and photos following the artist's complaint. Fernadez's attorney is claiming that what Sony did was illegal, as they contractually had the rights to the songs contained on the 7 albums but not the 8th album, while Sony is claiming that their use of the music on the 8th album was lawful.

If Sony is unsuccessful, I will be interested to know how damages are calculated. Considering in the previous RIAA cases, infringement and distribution by Jammie Thomas was worth $80,000 per song and in Sony vs. Joel Tenenbaum, the damage calculated was $22,500 per song. Sony might get a taste of their own medicine.

Myspace conviction overturned: ToS violation too broad for prosecution

2009-09-02T15:37:00.002+10:00

A conviction of a woman who allegedly 'cyber-bullied' a 13 year to girl, who subsequently committed suicide, has been overturned. The conviction was based on the Computer Fraud and Abuse Act, which is aimed at computer hackers, and the judge found that it could not be stretched to include mere violations of a terms of service.

However, judge Wu did not rule out the possibility of a ToS violation resulting in conviction, just that the ToS violation here was not a circumstance in which conviction under the Act was appropriate.

Evony is trying to sue UK blogger in NSW: Can a plaintiff successfully sue a foreign defendant?

2009-08-27T11:59:00.003+10:00

Almost everyone has come across the Evony adverts, most of them showing scantily clad women and promising that you can 'play discretely'. One gaming blogger, Bruce Everiss has taken a stand against Evony, mostly for allegedly spamming his forum and using unethical business practices.

The question is whether a NSW plaintiff can sue a UK defendant. The Supreme court in NSW can have jurisdiction to hear a matter concerning a defendant from a foreign jurisdiction. Gutnick v Dow Jones is on point here. Basically the High Court held that Gutnick (an Australian citizen) could sue Dow Jones (based in NY I believe) in Victoria, Australia as the damage to Gutnick’s reputation occurred in Victoria when subscribers in Victoria to the online magazine published by Dow Jones read a defamatory article about Gutnick. Here, the court had jurisdiction to hear the matter as the tort occurred in Victoria.

In NSW, the court have a 'submit and see what happens' approach to service on an overseas defendant. If the defendant fails to appear, the plaintiff then needs to seek the leave of the court to proceed with the litigation, where the court will decide if they are a 'clearly inappropriate forum' to hear the matter and that the claim has some success. There is also a lot of doubt surrounding the enforceability of the judgement (which the court does not take into account here). Without the defendant having assets in the jurisdiction, it may be difficult to enforce any judgement against them.

It will be interesting to see if this progresses, or whether this is simply a scare tactic.

Cyber bully jailed over Facebook death threats

2009-08-24T14:47:00.004+10:00

While bullying and harassment has always been traditionally recognised offline, it is interesting to see how bullying online is being dealt with by the law. It appears that in the UK, death threats made using the social networking site Facebook are serious enough to impose imprisonment.

Although it is questionable as to whether the defendants offline actions against the plaintiff were the main contributory factor in the courts decision, along with prior convictions against the defendant, it could be showing that the court is beginning the recognise that traditionally personal, offline offences can also occur online.

It will be interesting to see what the outcome would be should the threats occur entirely online.

Investing in Litigation: Commercial interests vs Justice

2009-06-03T21:11:00.003+10:00

Big money is to be made by investing in lawsuits, or so it is claimed by Richard Fields, chief executive of Juridica Capital Management. Many large investment companies are doing it, with investors rolling money into litigation between corporations, where the lawyers fees are enormous and the winnings are potentially even bigger.

But isn't the legal system about finding justice for parties who find themselves in a dispute? It seems to me that making litigation a speculative investment like crude oil will corrode the already fragile justice system. Plus the pressure placed on the lawyers to win the case at any cost may further corrupt legal practitioners who are already encouraged by their firm to win at any cost. I also think the scope for corruption in these matters has been overlooked. From the point of view of an almost legal practitioner, I cannot see how any move to invest in litigation is a good one.

Could Social Networking lead to Mistrials: Juror twittering causes appeal

2009-03-19T22:40:00.004+10:00

Two civil cases could be thrown out of court due to juror's using social networking sites, such as Facebook and Twitter, to allegedly discuss the case which they were deliberating upon before a verdict was given. It is alleged that while the juror's did not disclose confidential facts about the case, they were influenced by the replies they received.

With many people owning smart phones which can access the internet almost anywhere, the possibility of this happening in almost any jury trial (whether civil or criminal) is most probable.

Additionally, many trials, even those of low notoriety can be looked up using Google, therefore providing juror's with the opportunity to research the case they are deliberating upon with ease. I found this out when writing a University assignment which involved attending a jury trial which was relatively unknown. Before a verdict had even been reached, I could access key information about the trial (which was perfect for my assignment).

Patents: May be hurting the economy and preventing innovation says economists

2009-03-13T23:09:00.002+10:00

Here is an interesting article which says what many people, particularly in the IT world where software patents appear to be given out in cornflake packets, have been thinking for a while now.

Michele Boldrin and David K. Levine believe the current patent/copyright system discourages and prevents inventions from entering the marketplace. The two professors have published their views in a new book, Against Intellectual Monopoly, from Cambridge University Press. In particular, they point to the fact that patents are being used to prevent AIDS sufferers in Africa from receiving life saving drugs, or students being prosecuted for pirating music off the Internet.

Levine states "There's plenty of protection for inventors and plenty of protection and opportunities to make money for creators. It's not that we see this as some sort of charitable act that people are going to invent and create things without earning money. Evidence shows very strongly there are lots of ways to make money without patents and copyright."

In terms of technology, many software companies use patent portfolios to use as defence should they be found in violation of a patent, such as Novell announcing that it would use it's portfolio of patents to defend against claims against some of its open source programs.

It appears that people are starting to see that patents are not being used for their original intent and purpose, which is to protect innovation from being blatantly copied without credit, rather than wipe it out all together. Another example is the patent over One click check out.

Copyrighting a Fact: How Railcorp claims copyright in a train timetable

2009-03-06T21:40:00.003+10:00

Alvin Singh has received a cease and desist notice from RailCorp Sydney, demanding that he remove his popular iPhone application Transit Sydney from the itunes applications store.

They are likely to be relying on the previous decision of Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002), where it was found that Telstra owned copyright in the Telstra White Pages, a telephone directory. However, the 2007 case of Ice TV went against this decision, with a finding that there was no copyright infringement when Ice TV distributed an electronic, subscription based reproduction of Nine Networks programing schedule. The judge in Ice TV distinguished Desktop Marketing Systems as there is only one logical way of organising a telephone directory, but many ways of presenting broadcasting schedules. I am of the opinion that this will fall into the latter category, however every case turns on its facts in this situation (there appears to be no settled law on this point).

Interesting Blog to watch: 'You are Not a Lawyer'

2009-02-22T15:38:00.003+10:00

I stumbled across an interesting blog which has began a 'You are Not a Lawyer'. It aims to clear up misconceptions about the law that the technologically minded (and other laypersons) seem to have. The author, Paul Ohm, starts with the topic of 'Being acquitted versus Being searched'.

Amazon 1-Click Patent: Prior art claim has no final answer

2009-02-22T12:19:00.007+10:00

The Controversial 1-Click patent has come to light again, with reports that evidence of prior art was submitted with no final answer from the USPTO. Peter Calveley, an actor who worked on Lord of the Rings, cited as prior art an earlier e-commerce patent and the Digicash electronic cash system.

The 1-Click patent refers to the technique of allowing customers to make purchases online with a single click, with payment and shipping information needed to complete the purchase previously entered. Therefore, any other online merchant must ensure that their check out procedure involves at least 2 clicks (which Barnes and Noble discovered when they tried to introduce their own version of 1-Click). According to critics, the 1-Click technology does not deserve a patent as it is not innovative, which is understandable as it really only allows users to input their shipping and billing information before rather than after purchase (hardly innovative!).

Judge dimisses privacy case against Google: Judge states that law suit itself greater invasion

2009-02-21T22:48:00.004+10:00

A Pennsylvania couple who sued Google when photographs of their house appeared on Street View have had their case dismissed. A District court judge threw out the case, finding that they had no basis on which to continue their case. They failed on their claim for invasion of privacy on the basis that the photographs did not reveal private facts about the plaintiffs, which was required to establish the claim. The couple also allowed the relevant images to remain on Google Street View, despite the fact that there is a procedure to have photographs removed. Judge Amy Reynolds also pointed out that the case itself brought more publicity to the couple's address, names and photographs of their property, thereby invoking further invasion of their privacy.

On the issue of negligence, her Honour held that Google did not fail in any duty recognised by law and did not believe that the plaintiff suffered damage from the alleged trespass. Judge Amy Reynolds also pointed out that unjust enrichment typically occurs when there is a breach of contact, and here there was no contractual relationship between Google and the plaintiffs.

This is a very positive decision for Google, as they could have expected many more claims against them had this case succeeded.

Queensland woman sues Life Saving Australia: Will this set a bad precedent for other volunteer organisations?

2009-02-20T20:11:00.004+10:00

A Queensland woman is suing Life Saving Australia and St Johns Ambulance service for what they describe as assault and negligence. The plaintiff was competing in a surf carnival in Victoria at the time.

I don't usually comment on these sort of cases, however I think this would set such an important and detrimental precedent for volunteer organisations of this nature. Surf Life Saving have a very important role on Australian beaches, and many of the men and women who patrol the beaches do this voluntarily.

For starters, this is a woman who is participating in what is already a risky recreational activity. I have no medical background, but I assume that it is tricky to know the full extent of an injury at the time of the accident. Perhaps her initial injury was much more serious than anyone first thought.

Further, although I studied torts in Queensland (good old Civil Liability Act), it is highly unlikely that this could amount to unlawful assault considering that it is usual for life savers to seek permission from conscious patients (which for a dislocated shoulder, it is likely that the plaintiff was conscious). Unless there is grievous bodily harm (which is a whole other can of worms), permission would preclude an action for assault.

An action for negligence seems similarly fated; how did the life saver fail in their duty of care? What sort of duty of care does a volunteer owe to a patient?

And from a non-legal perspective, was this particular life saver damned if they did and damned if they didn't? Would the plaintiff have preferred to have not been helped?

Facebook flip flops on Terms of Service, considers new 'Bill of Rights and Responsibilities'

2009-02-20T19:56:00.005+10:00

After a huge response to Facebook's changes to their Terms of Service, it appears that Facebook has backed down and reverted to their old TOS. Apparently they have done this to collaborate with users to create a 'more understandable document', and are requesting the users contribute to a new Bill of Rights and Responsibilities (with Facebook now likening itself to an online 'country').

Now if only consumer advocacy groups and users would have such a big outcry to real issues in the real world, imagine what could be done!

Could Facebook own you? Well they own your content

2009-02-17T23:05:00.003+10:00

Facebook's new Terms of Service could mean that even after you close your account, they can continue to use their content as they please. This is a change from the previous Terms of Service, where the licence over your content expired on the termination of your account. Although the mind boggles as to what they could possible do with what appears to be worthless user generated content!

Reading book outloud copyright? It could be if the reader is a computer

2009-02-12T21:02:00.000+10:00

An executive director of the Author's guild, Paul Aiken, has spoken out about the use of text-to-speech software reading text from a book out loud. He claims that this is an infringement of copyright. If such a notion was somehow justifiable, how could they distinguish the reading of a book by computer software and the reading of a book by a human being? Would it be an infringement if a human being, who relied on an electronic or computer generated voice, read a book out loud?

Google: there is no such thing as complete privacy.

2008-08-06T12:55:00.003+10:00

Looks like Google are in the news again due to regarding their new Google street view. Some Americans have already voiced their opinions about street view and it's potential for privacy violation, and with the launch of street view in Australia, there are fears that this could be a serious invasion of personal privacy. There have even been suggestions that this sort of software could result in cars being stolen (as criminals could see them parked outside homes) or that partners may inadvertibly find that their partner is cheating on them when they see their car parked outside a strangers house.

Google have denied claims that street view could be an invasion of privacy, and have released a statement that 'today's satellite-image technology means that...complete privacy does not exist'. In a case against a Pittsburgh couple, who claim that Google was reckless in taking photos down a private street and causing mental anguish, Google have refused to come to a settlement, choosing to file for dismissal of the case. They claim that because the pictures could be publicly viewed by anyone, an action against Google for invasion of privacy should fail. Without a keep out sign, gate or other such thing to suggest that entry is not permitted onto a property, Google say they are free to approach a home by driveway, walk way, or other means of entering a home without fear of trespass.

Ebay not responsible for protecting trademarks

2008-07-19T12:53:00.003+10:00

After being fined $65.8 million for failing to stop the sale of counterfeit goods, it looks like Ebay have had scored a major legal victory in a four year long law suit with Tiffany & Co. Tiffany & Co claimed that Ebay turned a blind eye to the selling of counterfeit goods on their website.

In his judgement, Judge Richard Sullivan stated that "It is the trademark owner's burden to police its mark and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring on their websites." Furthermore, Judge Richard Sullivan said that Tiffany's claim was denied because they targeted Ebay instead of the individual sellers, as Ebay has taken all steps to take down fraudulent listings as soon as possible.

This is a huge win for consumers, and ultimately says that protecting trademark lies with the rights owner. There was also concerns for snowballing law suits, as this could set a dangerous precedent for Ebay and other online 'auction' sites. However, it is still early days, and it is likely that this decision will be appealed by Tiffany & co.

Update in Google v Viacom showdown: Google wins agreement to anonymise YouTube logs

2008-07-17T09:56:00.004+10:00

After the landmark judgement in which Google was ordered by a New York Judge to hand over data containing usernames and IP addresses of users who viewed YouTube clips which contained copyrighted material, Google has been allowed to anonymise the data. This partially diffuses fears about the privacy of users on the Internet, as a decision to disallow anonymising the data would have had serious repercussions for users. It would be like a television station being asked to uncover the names and addresses of all viewers of a certain show in which copyright was infringed (which anyone would agree would be a gross violation of privacy). Why should Internet users not have the same rights to privacy?

However, Google employees will be exempt, and they will determine how to share this information in the coming weeks. This is likely in a bid to prove that Google was aware that there was copyrighted material on YouTube.

The Electronic Frontier Foundation have argued that this order threatens to expose deeply private information. They further claim that this is a violation of the Video Privacy Protection Act 1988. The act has several important provisions:

A general ban on the disclosure of personally identifiable rental information unless the consumer consents specifically and in writing.
Disclosure to police officers only with a valid warrant or court order.
Disclosure of "genre preferences" along with names and addresses for marketing, but allowing customers to opt out.
Exclusion of evidence acquired in violation of the Act
Civil remedies, including possible punitive damages and attorneys fees, not less than $2500.
A requirement that video stores destroy rental records no longer than one year after an account is terminated.
The VPPA does not preempt state law. That is, states are free to enact broader protections for individuals' records.

As a federal court noted with respect to the civil discovery subsection:

… in construing the scope of the Act, this Court must strive to protect this aspect of an individual's right to privacy in the face of technological innovations that threaten this fundamental right.

Dirkes v. Borough of Runnemede, 936 F.Supp. 235 (D.N.J. 1996). Accordingly, a YouTube video qualifies as audio visual material under the VPPA.

Furthermore, it appears that Google have made yet another privacy faux pas. It appears that through their Google calendar, users can access other users gmail addresses. It doesn't seem to be a good year for Google and privacy.

Viacom vs Google: "We want some of that Internet Moneh"

2008-07-13T13:31:00.004+10:00

Viacom, who own the likes of Comedy Central, Nickelodean and Dreamworks studios, is involved in a $1 billion law suit with Google, claiming that they have infringed copyright. In response, Google has warned that websites which rely on user generated content could be held responsible for the actions of their users (in a previous article, I explain how Youtube and Ebay are under fire for the actions of their users). Viacom's claim is directed at user generated clips which infringe copyright on Google's popular video sharing website.

In a landmark decision, the July 1 hearing ordered that Google allow Viacom access to what people watch on Youtube, which is what consumer advocates have warned is a violation of privacy and could lead to Viacom targeting individuals for infringement. Google have already been under fire for their privacy policy, and in light of this it could be predicted that further advocation for stricter privacy policies.

Furthermore, although a fair use defence was once successful as Youtube usually allows for the sharing of small clips rather than full length episodes, Viacom have argued that they can now make money off advertising by releasing those clips appended with ads over the online network. It appears that Viacom are going the route of the writers, and they now want some of that Internet money.

This ruling has also been heralded as another blow to the Digital Millennium Copyright Act (DMCA), which has provided protection to websites from user actions if they comply with take down notices to remove illegal material. The Grokster case in 2005 was a huge blow to the DMCA, where it was found that the website was responsible for the illegal sharing of copyrighted material (with similar outcomes in the similar suits against Napster and Kazaa). Although interestingly enough, both are still in existence post law suit, with a few minor changes.

Further more, it is interesting that Viacom does not appear to practise what is preaches. Chris Knight posted his tv commercials for his campaign on Youtube to get on the school board where he lived, which VH1, a Viacom owned brand, used without his permission in a segment on one of it's shows, Web Junk 2.0. He then posted the same clip from VH1 to post on his blog, which was then taken down by Youtube due to infringement of Viacom's copyright. However, he then filed a DCMA counter claim (a right which apparently few know about according to Fred von Lohmann at the Electronic Frontier Foundation), which was sucessful. Effectively, Viacom took material without permission, used it for it's own commercial purposes, and then issued a take down notice when the copyright owner posted the clip to Youtube!

How to: take a screen shot on your mac.

2008-07-06T13:24:00.000+10:00

Okay, there are three different ways to take screen shots on your mac.

Shift + apple key + 3 - Captures entire desktop to a file on the desktop as 'picture #' . This option lets you capture the whole screen. If you want just one window on your screen, you will have to edit the picture using image editing software.

Shift + apple key + 4 - Allows you to use your mouse to select a specific part of your desktop for capture. This will turn your mouse pointer into a cross, please hold down the mouse button and drag to select the part of the screen you want. When you release the button the screenshot will "snap" that part of the screen. Press 'Esc' to release. I used this one to take the screenshots for this blog.

Shift + apple key + 4 then press spacebar - Allows you to select which window to capture.

Ebay and Facebook in the headlines yet again

2008-07-02T11:15:00.003+10:00

In the emergence of large, profitable websites, there also appears to be an equal number of large and costly law suits against the companies that create these websites. While Ebay and Facebook would apparently have little in common, they are both the centre of recent controversy caused by third parties.

Ebay has recently been fined $65.8 million dollars for failing to stop the sale of counterfeit goods on their online auction site in favour of six LVHM brands (which includes brands such as Louis Vuitton). Ebay have indicated that they will appeal the decision. Similarly, although no action has been taken against Facebook itself, Matthew Firsht has taken an action for damages for a false profile set up on Facebook which made claims about his sexuality and the financial viability of his company.

Ebay has also been the centre of legal controversy in the case of Evagora v Ebay. Evagora successfully bid for a computer in an eBay hosted auction, which was paid for but never arrived. The seller of the computer was based overseas. Evagora claimed for his loss against eBay, arguing that he did not read eBay’s user agreement, and that EBay represented that the auction site was safe, which overrode the terms of the user agreement. EBay was held liable by the Tribunal for the loss suffered by Evagora.

It is therefore question of whether such websites can be accountable for the illegal acts of their users. For ISP's, the answer is that they are protected from liability, unless other circumstances apply (for example, they are issued with a take down notice, example). Should such companies be help responsible for the acts of their users, especially when they are not acting in accordance with the site EULA.

On Slashdot recently was an article about a man called Hiroyuki Nishimura, who has been taken to court over and over again over his site he has created, Japanese site 2channel. While he is happy to comply with mandates to delete things, he refuses to pay any money. He says, in the article, "Would a cell phone carrier feel responsible when somebody receives a threatening phone call?".

How to: set up Expose on your mac.

2008-07-01T16:35:00.000+10:00

Ok, this is quite easy. For Mac OS X Leopard, you simply open up system preferences which is located under the apple in the top left corner). Click on Expose and Spaces on the top line, and then make sure you are in the Expose window. Then set up which corner of the screen you would like to have active when the mouse is moved to that corner, and what you would like to happen (eg. go to desk top, view all windows). I have mine set up so that I can see all the windows I have open when I move my mouse to the bottom right corner of the screen.

Privacy in the limelight: Is Google's privacy policy too inconspicous?

2008-06-04T16:18:00.006+10:00

Google has been attacked by privacy advocates for not making its privacy policy conspicuous to its users. The issue arose when New York Times Reported Saul Hansell queried Google's compliance with California's Online Privacy Protection Act of 2003 on his blog. He noted that Google's major competitors did provide links to their privacy policies on their home pages.

Privacy was not as much of a concern before the technological age: which could be partially because anyone can access information at the click of a button and because most people have a mistrust of technology. This could be reflected by the Common law position in Australia (see Victoria Park Racing v Taylor, and ABC v Lenah Game Meats) although there was some recognition that privacy issues may be relevant. The National Privacy Principles (for the private sector) and Information Privacy Principles (public sector) and Privacy Act 1988 (Cth), change this position. In the National Privacy Principles, there is a requirement that organisations are open about the way in which they use information, which appears to be mirrored in the California Law. However, with the introduction of social networking sites, it seems apparent that in some ways, internet users are becoming less concerned with privacy. Facebook, for examples, used to allow users to post their mobile number, street address, personal photo collections etc, and have been accused of selling user information for advertising (which is probably where users should have reason for concern as to what is happening with their personal information).

Having read this article, I was of the opinion that Google either had no reference to their privacy policy or it was in tiny lettering. I found I had no problems finding their privacy policy, and was a bit shocked that this is even an issue. Does it need to be in size 72 font, with flashing lights around it? Just like the humble EULA, I am fairly sure that the average Google user probably doesn't care what their privacy policy is (I know before reading this article it had never occured to me to have a look). Is this just another way to bash Google and allow privacy another 15 minutes of fame?

Intellectual Property and Copyright Issues: Baidu Advertisers asked to boycott on piracy issues

2008-06-04T15:35:00.003+10:00

It appears that the big record companies are at it again! Universal Music and Warner Music Group are urging advertisers to boycott a Chinese search engine (Baidu.com), due to claims Baidu encourages copyright infringement (read the full article here). They estimate that they are only receiving 20% of the revenue they would expect from China's music industry, and that 99% of their music is believed to be pirated.

Recently, it appears that attention has shifted from peer to peer (p2p) file sharing software, to either individuals or in this case, search engines. In Australia, the case of A&N Records v Napster, MGM v Grokster, and Universal Music v Sharman License (Kazaar Case), it was found that although p2p softare has legitimate uses, providing a means for illegally copyrighted files went well beyond the the US 'fair use'. However, it appears that p2p are now taking heed of such cases, and implementing steps to prevent themselves from suffering the same fate. In the Napster case, the decision appeared to turn on the presence of a central index, which prevented them from denying any knowledge of copyright infringement. Many p2p file sharing programs now divert responsibility by giving warnings (see Universal Music v Sharman License), and ensuring that there is no central index. After the RIAA's controversial law suits against individuals, it appears that the record companies are beginning to grasp at straws by targeting yet another source.

Following the massive success of Grand Theft Auto IV with profits in excess of $500 million, perhaps it is time for the record companies to review their business plan. Consumers appear to be willing to pay for some forms of entertainment, so perhaps it has something to do with the 'quality' of the product they are marketing. Consumers are purchasing more items online, and with much music sold online riddled with Data Rights Management (DRM) protection, it is no wonder consumers are resorting to piracy. If someone had to choose between music which they have to pay for, but the music cannot be moved once it is downloaded (these includes burning the music onto a disk for personal use, or loading the music onto your MP3 player), or music which is free without any restrictions, it is not difficult to see why consumers choose to download the pirated version. I do not think it is fair that consumers receive music for free, however I do firmly believe that rather than resisting the new technology available to consumers, they should be embracing it by letting of of business plans which are long obsolete.

Pen and paper: end of an era?

2008-04-23T13:24:00.002+10:00

Spot the odd one out!

Marketing Information Masters v. The Trustees of the California State University: Court Finds Part of Copyright Act Unconstitutional

2008-04-21T15:05:00.002+10:00

In this American decision, it was found that a section of the Copyright Remedy Clarification Act was an invalid exercise of power under the Constitution. This section states that "[a]ny State, instrumentality of a state... or employee of a State or instrumentality of a State... shall not be immune, under the Eleventh Amendment" to a suit for copyright infringement. 17 U.S.C. section 511(a).

A win I suppose for those who believe that copyright is draconian and should be replaced with a share and share alike mantra?

Here is an article which outlines the legal effect of such a decision, and here is the link to the Slashdot article.

Copyright and Intellectual Property: A look at the Facebook law suit

2008-04-21T13:13:00.003+10:00

Many students, and others who spend their days looking for ways to procrastinate, probably have a face book account. Many may recall the spread of the news that face book is going to be shut down due to law suits stemming from Mark Zuckerberg's fellow students, Tyler Winklevoss, Cameron Winklevoss and Divya Narendra, claiming that Zuckerberg had taken code he had written for ConnectU to launch his rival site.

The background to the lawsuit is this: Mark Zuckerberg, as a student at Harvard University, joined with three classmates who were working on a new idea called ConnectU, a set of interlinked social networks for students at a single college. Zuckerberg did some work for them, but then launched his own website — what's now known as Facebook. His three former classmates than launched an action against Zuckerberg on the 2 September 2004 for the alleged theft of their idea - and argued breach of fiduciary duty, breach of contract, and fraud amongst other things. While the case appears to be settling out of court (see the New York Times article here), an obvious legal issue arises from this case: can code be considered intellectual property in the same way that other literary works are? Can it be protected by a copyright?

Now the claim that code can be protected intellectual property is not new. In the case of Computer Edge v Apple, it was held that code was a literary work and was therefore was not able to be protected by copyright under Copyright Amendment Act 1984. At the time, it was unlikely that the legislature could have envisaged computer programs when they enacted this act, however the Section 10 of the Copyright Act now states that a computer program is subject to copyright protection. It appears that a computer program (and presumably the code contained within it) are protected by copyright.

The question also arises as to what a substantial reproduction would entail: could stealing a single line of code constitute a breach of copyright? The court in Autodesk v Dyason there was a computer program of 20 000 lines long. A string of data which was 16 bytes long, which was said to be essential to the execution of the program, was taken by a competitor to create a similar program. The question for the court was whether this was substantial. They applied a but for test: but for this part of the program, would the program still exist? However, this decision was questioned in Powerflex services v Data access, where it was held that the test should look at the quality of the part; if the but for test was used this would result in rediculous outcomes as even the removal of a semi colon could be disastrous for a computer program (with the outcome that even a semi colon could be protected by copyright!).

It is arguable as to whether Zuckerberg's classmates could have gotten up on a copyright argument, as it should be recognised that these decisions were heard in Australia. It appears that they did not consider the possibility of breach of copyright (however, another line of thinking is that if they could show breach of fiduciary duty, they could be entitled to such equitable remedies as account of profits). It is interesting to note that a similar situation arose in the Apple vs Microsoft war to release an operating system, Steve Jobs showed Bill Gates his idea for a graphics based OS, which was ripped off in the release of Microsoft's own Windows (well from the portrayal in Pirates of Silicon Valley, which while written without interviews with either Jobs or Gates, was well researched by writer Martyn Burke).

However, if anything, Facebook and other such cases have shown that perhaps that copyright of code is not productive for entrepreneurial pursuits. Sharing and building on others code could be more beneficial, as shown in the Open Source community. Furthermore, what is boils down to is that Zuckerberg had a better business model that the ConnectU founders: it is questionable as to whether their site would have gone to the same heights as FaceBook. The same goes for Microsoft and Apple: it is arguable that Bill Gates had the better business model to market the graphics based operating system.

Ebay - Peter Smyth v Vincent Thomas

2008-04-05T14:25:00.004+10:00

I have purchased many things on ebay, and I am sure that a substantial amount of the population have done the same. But what happens when things go wrong, is there a binding contract on which to rely on? Is Ebay liable if an item doesn't turn up?

In the 2007 case of Peter Smythe v Vincent Thomas, the Defendant Thomas listed a Wirrawau Australian Warbird aircraft for sale, with a starting bid of $150,000.00, even though Thomas thought the aircraft was probably worth around $200K to $250K. With 20 seconds remaining, Smythe made a bid on the aircraft, in accordance with Ebay rules, and 'won' the aircraft (which is a peculiar way of buying something in my opinion, as you still have to pay for it at the end: I mean you don't go into Woolworths to buy a bottle of milk, and at the counter they tell you have won a bottle of milk... but you still have to pay for it....). Both parties were registered users of ebay, and both were aware of how ebay worked. Smythe then claimed that as a result, a contract for the sale of goods had been entered into, and there was now a binding contract between himself and Thomas. Thomas claimed that the ebay entry was simply an invitation to treat or in other words a request for expressions of interest. Thomas said that it was rediculous that a contract for the sale of a plane could occur, as Smythe had never inspected the plane, and he said that his intention was to advertise the plane, then discuss the terms later on. He also had another offer for the plane for $220,000.00, so this might have also been a factor as to why he was so keen to ensure this contract was not binding. Thomas also claimed that he did not know that he would be committed to sell the plane.

The New South Wales Supreme Court found it surprising that Thomas was not aware that he would be committed to sell, as he had bought vintage car parts previously, and knew how ebay worked. In the view of Rein AJ, by listing the plane for sale on ebay, with a disclosed reserve of $150,000.00, he offered to sell the plane to a bidder who bid before the end of the auction, with a bid for $150,000.00, and was the highest bidder at the end of the auction. However, it should be noted that ebay is actually not an auction site, it only provides an auction like format for users to sell their items. Therefore, the rules of a traditional auction did not apply. It was held that there was a binding contract formed between the parties, and it should therefore be specifically enforced. All the essential terms of the Contract were listed on ebay, such as the price, and that Thomas had never stated that the sale was subject to an inspection or further discussion of the terms of the sale.

One has to wonder though, what would happen if Smythe then purchases the plane, but finds it is poor repair? Would he have a further action? Could Ebay be liable? Further could Ebay be liable should an item not turn up, and the Seller had absconded with the purchase money? In Eva Gora v Ebay, a person in Victoria bought a computer from someone in the Middle East. It never turn up, and the person who sold it disappeared. They contacted the police, who refused to investigate. They then decided to take ebay to court. Ebay argued that they were not a party to the contract, only a forum for users, but that she could claim $270 insurance. However, Ebay said on its website ‘safest place to do your shopping’. Under the fair trading legislation, the question was were they inducing people to rely on their message that ebay was safe to use? It was held that they were bound to this statement. The court found that ebay had conducted itself that it was safe to use, and was for all cases automatically insured. They failed to disclose that their insurance was small. They were therefore held liable under TPA.

Electronic Contracting - the legal effect of EULA's

2008-04-05T13:41:00.005+10:00

Electronic contracting - almost everyone who has access to the computer has probably at some point entered into an online contract. The most common is the End User Licensing Agreement (EULA), which is often seen when installing a piece of software. But by scrolling down to the bottom and clicking "I agree", even when you don't have the slightest idea as to what you agreed to, are you legally bound to the terms of the EULA? In Hotmail Corporation v Van Money Pie Inc and Steven J Caspi v Microsoft, the US courts have said yes, as long as there is unambiguous assent to the terms and conditions (which included scrolling through the terms and conditions and clicking an "I agree" button to continue with the installation, however the browsewrap cases where the user has to click up the conditions seperately is a bit more ambiguous as to whether it is binding or not). Furthermore, in the case of L'Estrange, it was held that someone who signs a contract without reading it, is still bound by the contract as they are presumed to have read it (of course, this is subject to defenses such as non est factum, duress, unconscionability etc). So it does appear that they are binding (unless a software developer is in the business of sending out representatives to hold you at gun point unless you sign, but considering the general public don't even bother to read it and click "I agree" of their own free will, I think they figured it was probably a poor investment).

So keeping this in mind, it appears that many companies have failed to read their own EULA's! Recently, Adobe have released Photoshop Express, which is a free web based photo editing, organising and sharing service. In its EULA, it states that Adobe is free to do what it likes with any photos uploaded for use on this service eg. using a photo for its own advertising, without royalties or credit for the image. It is possible that they copy and pasted this EULA, and simply forgot to change it to suit their own needs. According to Adobe:

We've heard your concerns about the terms of service for Photoshop Express beta. We reviewed the terms in context of your comments - and we agree that it currently implies things we would never do with the content. Therefore, our legal team is making it a priority to post revised terms that are more appropriate for Photoshop Express users. We will alert you once we have posted new terms. Thank you for your feedback on Photoshop Express beta and we appreciate your input. - quoted from Ars Technica article.

According to the same article, Apple also doesn't appear to have read their own EULA for Safari, in stating that it is only to be run on Apple machines, when it has been released for other Operating Systems for non-Apple machines for almost a year now!

Stealing 'wireless internet' bill: Oh Noes Someone is Stealing my Gigabytes!

2008-03-21T12:18:00.004+10:00

Don't you love how those with the least expertise and knowledge of techonology are the ones making the laws which govern the use of it!

In yet another misguided view of technology crimes and how they occur, Delegate LeRy E. Myers Jr. presented a bill to the Maryland House of Delegates that would criminalise purposely surfing the Internet on someone else's wireless connection. In a Slashdot.org article:

"A bill presented by Delegate LeRoy E. Myers Jr. to the Maryland House of Delegates would criminalize purposely surfing the Internet on someone else's wireless connection. The bill would make intentional unauthorized access to another person's computer, network, database, or software a misdemeanor with a penalty up to three years imprisonment and a fine of up to $1,000. The Maryland public defender's office has submitted written testimony opposing the specific ban and penalty suggested in Myers' bill. Noting that wireless connections are becoming common in neighborhoods, the written testimony says: 'A more effective way to prevent unauthorized access would be for owners to secure their wireless networks with assistance where necessary from Internet service providers or vendors.'"

The full Herald Mail article can be accessed here.

Not only would this law, if passed, would be almost impossible to police, it would be completely over the top and totally miss the point of what it is supposed to be deterring! I think the point of the bill is to stop users from entering onto a wireless connection without the permission of the owner of the wireless router, but honestly there is a MUCH simpler solution then wacking a $1,000.00 fine and up to three years imprisonment - how about educating those who buy wireless routers as to how they can secure their connection to ensure no one has access to their connection in the first place?

Furthermore, shouldn't the harm be comparable to the punishment? I think in most instances of using someone else's wirless connection, there is probably no intent to do harm to them. In most cases, it is probably accidental (as some users may be unaware that they are using a 'stolen' internet connection, or their computer automatically searches for the first available internet connection). Of course there are the 1% who do actually intend to do harm, but aren't there laws already in place for computer hacking (check out s408E Criminal Code 1899 (QLD)). And what about the users who still think that internet explorer is "The Internet", and have no grasp of how or why it works, but they know that clicking on a big blue "e" allows them to access this wondrous thing called the world wide web? I would envision that most such users would just use the first connection which pops up. Would such a bill allow the prosecution of such users (just take a look at the prosecutions against computer illiterate users (click here and here for ridiculous RIAA suits). It is possible that a similar chain of events may emerge where such a law would be used inappropriately against the technologically challenged.

I also find it incredibly hypocritical to apply different standards to circumstances which occur in regards to technology and circumstances in the 'real' world. The Australian Road Rules 1999 states the following:

213 Making a motor vehicle secure
(1) This rule applies to the driver of a motor vehicle who stops and leaves the vehicle on a road (except to pay a fee for parking the vehicle) so the driver is over 3 metres from the closest part of the vehicle if there is nobody 16 years old, or older, in the
vehicle.
Note Motor vehicle is defined in the dictionary.
(2) Before leaving the motor vehicle, the driver must comply with this rule, except so far as the driver is exempt from this rule under another law of this jurisdiction.
Offence provision.
(3) The driver must:
(a) switch off the engine; and
(b) apply the parking brake effectively or, if weather conditions (for example, snow) would prevent the effective operation of the parking brake, effectively restrain the motor vehicle’s movement in another way.
(4) If there is nobody in the motor vehicle, the driver must:
(a) remove the ignition key; and
(b) if the doors of the vehicle can be locked — lock the doors.

Therefore, if it is an offense to leave your car unlocked, why should it not be an offense to leave something like a wireless router unlocked? In this case, there is the opportunity to protect your own interests, so why should there be any recourse to the courts where you simply failed to take the necessary precautions? Of course, in the case of malicious intent to cause damage to your computer, then yes the full extent of the law should apply. But in the case of using someone else's wireless internet connection, you are not causing any major harm and the owner of the router should take the responsibility of protecting it if they do not wish for someone to access it.

What would you look like as a celebrity? Morphthing.com

2008-03-20T23:58:00.002+10:00

Ok, if you are really really bored (or perhaps procrastinating because you have assignments and study to do like me), check out this site! You can either mix celebrity faces with each other, or mix your own face with a celebrity!

Here is one I made earlier...

The site is www.morphthing.com.

Just my random addition for the day!

Docx and the mac: can they be opened without Word 2008?

2008-03-20T22:06:00.002+10:00

I have just encountered the natural enemy of the non-windows world: the .docx!

Much to my disgust, some of my lecturers have decided to post up their lecture notes in docx format! To anyone not aware of what this is, it is the default format which word 2007 saves its files as. And it is quite annoying to all those who don't/choose not to/too broke to get a copy of word 2007.

But my mac has come to the rescue; in a fit of rage I attempted to open such a file, and found that the mac can in fact open a docx file without word 2008! The formatting isn't fantastic, but if you are just wanting the content of the document it is sufficient.

Mac feature of the week: alt tilda and alt tab

2008-03-12T23:09:00.004+10:00

A new feature I just discovered: pressing "apple" + "tilda (~)" cycles through your application windows! So if you have multiple windows open like the gimp or fire fox, you can simply scroll through the relevant pages (as opposed to alt + tab, in which you scroll through all available windows). Handy if like me you have a heap of windows open in the same application.

Virtual courtroom: is online sexual assault and rape a crime?

2008-03-12T17:16:00.003+10:00

Just imagine you are walking down a dark alley, and someone jumps out of the shadows, beats you up or sexually assaults you and then runs off with your wallet. Would this be a crime? I think the majority of people would say it is a resounding yes (and for those playing along in Queensland, the Criminal Code and the Court would probably say yes too). Now, imagine the same scenario, but now you are an avatar in a virtual world? I think the majority of people would either umm and ahhh, or have a feeling that something like this is probably not illegal. Obviously there isn't much in the legislation regarding this kind of thing (perhaps harassment or stalking to some extent, although not sure if this has even come up in the courts). And considering the Queensland Criminal Code still thinks of piracy as men in funny hats on ships sailing the seven seas plundering and looting, it is highly unlikely that it would apply to this online situation, even when it would clearly apply to the real life version.

Now, for those of you who have heard of Second Life or have perhaps played it, you may remember that there was a report in two Belgian publications that Brussels police have began an investigation into a sexual assault which occurred on second life! Although it is thought to have been merely a hoax or joke, there is word that some countries have ongoing litigation on online crimes against their online persona's. Then there was the Anshe Chung saga, where an online real estate mogul was showered with obscene pictures (see the footage here).

Furthermore, could online defamation of ones avatar begin to become a problem in the 'real world' courts? For example, should one be playing World of Warcraft, and they offhandedly call a fellow player a n00b, and they retort that they find this a derogation of their character and they believe it will harm their reputation, would this be grounds for a defamation suit? Could a business owner in Second Life have an action in defamation should someone untruthfully spread rumours that the owner spits in the virtual food they are serving in their restaurant? Perhaps some new online court rooms will start cropping up; I can't help but laugh when I think of some gruesome looking WOW characters filing into a courtroom, with an Orc residing as the judge :P

But isn't half the fun of these online games that you can leave this reality and delve into another where your life is entirely different? And if someone is doing something naughty, shouldn't we just leave it to the moderators, and leave the courts out of it? I am sure lawyers with more moral turpitude than myself are probably licking their lips while thinking of the potential for millions to be made on this, but for what? I honestly hope that our judiciary has a bit more sense than to open the flood gates.

Gutnick v Dow Jones vs Macquarie Bank Ltd v Berg: defamation over the internet?

2008-03-10T22:48:00.004+10:00

Do you have a grudge against someone and wish to release some sensitive information about them that may ruin them? Do they live in another country with liberal views on defamation? Well keep reading!

The case of Macquarie Bank Ltd v Berg basically said that defamation of a person, or company as the case may be, is alright as long as you are in another country! In this case, Berg was a disgruntled ex employee of Macquarie Bank, and as a matter of course, he decided to post defamatory information regarding certain senior members of the bank (including incriminating sound bytes). Of course, Macquarie bank got quite upset, and decided to sue Berg in the NSW Supreme Court. However, the nasty business of jurisdiction cropped up as Berg was now under US jurisdiction.

Simpson J in the NSW Supreme court said that the material was defamatory, but as a procedural matter they would not grant an injunction for an ex parte interlocutory case. Simpson J said that if they took jurisdiction for a website in California, they could then superimpose their laws onto any other country in the world. Basically, just because Berg was in another country, he was allowed to defame as he pleased :P. Funnily enough, just by litigating on the matter, thousands of people would have visited Berg's site as a matter of public interest! So by litigating, the tiny site made by a noone was cast into the spotlight - perhaps by keeping it quiet it would have disappeared into oblivion and there would have been no need to seek an injunction!

For more information on this interesting case, click here!

Of course, this couldn't be the answer to 'cyberspace' defamation, could it? Well in Gutnick v Dow Jones, Dow Jones, known for its publication, the Wallstreet Journal, published an article titled "Unholy Gains" in an online subscription service with various 'comments' about Joseph Gutnick, an Australian Business man and former president of the Melbourne Football club, who resided in Victoria. Following the decision handed down in Berg, one would think that the same jurisdiction problems would arise. The High Court of Australia disagreed.

In a unanimous decision, all seven High Court justices decided that Gutnick had the right to sue for defamation at his primary residence and the place he was best known. Victoria was considered the place where damage to his reputation occurred. The High Court decided that defamation did not occur at the time of publishing, but as soon as a third party read the publication and thought less of the individual who was defamed. The High Court's ruling effectively allows defamation plaintiffs in Australia to sue for defamation on the internet against any defendant irrespective of their location. "If people wish to do business in, or indeed travel to, or live in, or utilize the infrastructure of different countries, they can hardly expect to be absolved from compliance with the laws of those countries. The fact that publication might occur everywhere does not mean that it occurs nowhere." (per Callinan J at para 186)

Of course, this was just on the question of jurisdiction! The case concerning the defamation was never heard, however it was released that a settlement was reached between Gutnick and Dow Jones for $440,000.00. However, the author (Alpert I believe his name was) stated he wished to appeal to the UN Human Rights committee, although to this date nothing has come of this (publicity stunt?).

If you have read this far, unfortunately the law in Australia seems to point to the 'effects test' (where the correct jurisdiction is the place where the actual harm occurs). So your enemy needs to be in a country with more liberal defamation laws than ourselves :P

For a more comprehensive look at this issue, you need to look at the cases which occurred before during and after the two mentioned above.

This is pretty cool!

2008-03-10T22:44:00.002+10:00

"Steve Jobs - made using images of apple products.

Macworld 2008 and Steve J vs Steve B

2008-03-02T14:07:00.001+10:00

Its that time of the year again - Macworld!

I have watched the shorts from this for a while now, and its fantastic how innovative apple have been over the past few years! The new iphone looks incredible, I have already put in my birthday order with FH :P

The thing I love about Steve Jobs is that he knows how to think from the point of view of a consumer. Sure, they sometimes stuff up (apple tv for example), but rather than just expect consumers to like it or lump it like microsoft, they try and improve their products so they are more user friendly.

You are almost forced to respect Steve Jobs; he arguably pulled apple out from a downward spiral when he was rehired to run the company he started after being fired in 1985!

Steve Ballmer was named CEO in 2000 when Bill gates stepped down: I truly respect Bill Gates for his fantastic business knowhow, but Steve Ballmer comes across as immature (see below). His latest act is running into a microsoft presentation like a drunk frat boy!

For information, I would recommend Pirates of Silicon Valley - not an entirely accurate portrayal of the rise of Microsoft and Apple, but quite entertaining ;) Or maybe I am just a giant nerd :P

Anyway, for your viewing pleasure:

http://www.youtube.com/watch?v=wvsboPUjrGc - Steve Ballmer goes crazy! Very similar to the entrance of a WWE wrestler :P

http://www.youtube.com/watch?v=Yz1-cPx0cIk - Macworld 2008 Steve Jobs keynote speech in 60 second

http://www.youtube.com/watch?v=KMU0tzLwhbE&feature=related - this is bizarre :P

Wireless internet and the mac!

2008-02-27T20:53:00.001+10:00

Uni is in full swing now, and one of the biggest perks of taking a mac into lectures (besides looking incredibly pretentious of course :P), was so I could access lecture slides from the internet. So I get to the lecture, turn on the airport, and select the Uni's wireless network. Nothing happens. I then go through and configure the wireless network with no success. As a last resort, I ring my FH at work, sobbing that the stupid computer won't connect to the stupid wifi... spent 5 minutes messing around with settings to no avail.

So I give up, go to my next class and lo and behold I get an instant connection. The solution? I had no signal in the previous lecture room! So while I had been cursing the poor machine, it was in fact my university who had failed to let us know that they only had certain hot spots where we could access the internet! All working great now with no issues thankfully.... just not in that lecture room :P

As a side note, one of my lecturers is posting our notes up in docx format.... which is unreadable for anything except office 2007! Ahhhhh!

Going back to University soon!

2008-02-27T13:50:00.001+10:00

Well the time is almost here when I go back to studying: it has been a great 4 months of working and holidaying! I am busily preparing all my material (on my mac ofcourse), and also preparing myself for a stressful year of law (as I have just graduated from psychology - which I think was keeping me sane!).

I am studying administration law, civil procedure, corporate law, and law & technology - so there will be quite a few upcoming blogs about my ponderings on the impact of the law on the internet (big area of interest for me). For anyone who has real the terms and conditions for anything they install on their computer, you may know that by agreeing to the terms and conditions you consent to any future amendments to the terms and conditions. How does this fit with the traditional law? I don't know (yet), but will find out in the weeks to come ;)

Not mac related but who cares - Phantom of the opera!

2008-02-15T17:30:00.000+10:00

Went and saw Phantom of the Opera the tonigh night at QPAC, and loved it! It was the most amazing experience of my life! I now have all the music and listen to it constantly...

I heart firefox! Oh and I heart my mac!

2008-02-09T13:35:00.000+10:00

I have fallen in love with firefox again! I love the add ons, I love its speed, I love its familiarity.... I have now deleted opera and safari from my dock (*shock, horror!*). I almost added a few more programs to my dock, just to remove them (there is a little cloud, and a 'poophh' noise... very very cool!).

I am starting to understand the age old saying (well maybe not that age old.... but anyway), unix for stability, macs for productivity.... and windows for solitaire :P Although the mac has the incredible short fall of not coming pre-installed with solitaire which I think is part of the reason it is more productive, you come to appreciate that everything just 'runs'. I have owned the mac for around a month now, and nothing ever crashes, freezes, takes unthinkable amounts of time to install or summons the ominous 'blue screen of death. It just works!!!!

Taking the mac to the next level: installing stuff

2008-01-26T10:20:00.000+10:00

Ok, I am now sick of just using my mac to look at emails, browse forums and take random photos in photo booth! I finally get around to copying my vast music collection onto itunes (which I am very much accustomed to as I have used it for ages as my primary music player.... although I really do prefer amarok for linux), and install iworks and microsoft office 2004. I also install firefox, as I am over safari, and opera keeps timing out...

The interesting thing about installing things on the mac are that instead of clicking an 'install' button, you drag an icon onto a folder :P A it takes no time at all to install!

I have also discovered the finder application... I can't believe I have had this mac for around 2 weeks without it!

My new mac discovery: Expose!

2008-01-11T04:00:00.000+10:00

I have been timidly moving into this new 'world', and have only grasped how to use safari, and photo booth :( Additionally, I am having trouble moving between different windows, which is really quite frustrating as I am used to the minimised windows I became accustomed to in xp and ubuntu. FH points out to me that I simply need to set up expose! I simply move my curser to the bottom right corner of the screen, and all my windows pop up in front of me, which means I can simply select the relevant window!

I then go on a windows computer at university, and look like a complete idiot as I persevere with attempting to switch between windows by moving the pointer to the bottom right hands corner...

The long uphill climb...

2008-01-08T12:46:00.000+10:00

Well I have put it off for long enough; I stop simply staring at this gorgeous piece of equipment and decide its time to begin the 'mac' journey!

I am greeted by a simple installation process where I input all the relevant info, and within a few minutes I am ready to go! Its a strange experience, as when I re-installed xp on my old computer it took roughly enough time to do my household chores and go for a jog around the block! I am a bit put off as the OS looks slightly different to the ones in the store, until my lovely fiance (I will refer to him as FH for simplicity), pointed out that I still had to install leopard myself!

So I pop in the cd, and this time I am greeted by this short video (which I think was surrounded by quite a bit of hype when leopard was first released), and even watching this you are in awe of the steps apple has gone to making the mactop 'nice' to use! After the video is over, you are brought through the installation pages which are 10 times easier to use than the previous Tiger OS, and within moments I hear the gentle "logging in" tune (which is far superior to that of the XP log in noise, which is frankly the most irritated cluster of notes microsoft could have come up with!).

Now for the overwhelming bit: my mac is completely different in functionality to my previous computer running xp and linux! After much complaining and whining, I finally log into safari to log onto my emails. I then spend a bit of time taking photos in photo booth: the new moving background keeps me occupied for a while! But one thing is for sure: I have alot to learn about my new mac before I can use it to its full potential.

Time to get a new laptop!

2008-01-07T11:56:00.000+10:00

Today is the day I buy a new computer :P My previous dinosaur kicked it a few months ago, and now I have been using a sorta hand me down computer which has been making strange noises lately! I also want to take it into lectures so I don't have to write down notes only to type them up later (I'm not just wanting one so I can sit in lectures and look pretentious :P)

But what do I choose? Do I go with a "PC" laptop, preinstalled with vista ('shudder'), buy aforementioned PC laptop and download linux (which I had installed on my previous computer, however open office and myself never got along), or branch out into the world of the "mac" top!

After some initial research, numerous stops at the local online computer store and drooling over the sexy macbooks on the apple site, I have decided to go check some out in the flesh!

My initial experience with the "Vista" laptops is quite disappointing. It takes forever to boot up, and programs keep crashing: not a good first impression! I reason that I could format and install ubuntu, but on my previous computer I found myself booting into XP for certain things so there could be problems here (I could always get used to Vista, but why the hell should I!).

So off to the mac store I go to check out the macbooks! Ofcource, everyone has been to see the macs in the macstore, even to take stupid photos in the photo booth app (well, I know I have!). I have a quick play with one of the macbook pros, and the first thing I notice is how quickly everything loads and how simple to use they are. Plus they come preinstalled with Leopards the new Mac OS! The sales guy gives us a good deal (after I tell him I could easily shave a few hundred by shopping online, so I am going to do just that if he doesn't), and I arrange to come back the following day with the cash! I am on the enlightened path of the mac user!