Cyberspace Law and Policy Centre, University of New South Wales
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Thursday, September 27, 2007


Legislation 2.0

I feel as though I should start this blogpost with the Monty Python adage, “and now for something completely different…”.

On Tuesday, the New Zealand Police announced the launch of a new wiki as part of its current review into the 1958 Police Act. The aim of the wiki is to encourage individuals to make suggestions regarding this legislation. On the homepage for the wiki the situation is further explained and it is stated that, “[a]n official Bill is currently being written-up by parliamentary drafters, but in parallel there's an opportunity for others to suggest how a new Policing Act might look by contributing to a wiki Act. It'll be kept open until 1 November 2007, when the results can be fed back into the official law-making process.” So for those who feared that the new New Zealand Policing Act may have featured a few radical provisions (“Police will have no power to arrest individuals on Tuesdays”), it is obvious that the wiki will not be the be-all-end-all for the new Act.

Constituents in a variety of jurisdictions have often had the opportunity to comment on proposed laws, with various degrees of success. For example, in Australia, at a Federal level, a Bill can be released by the Attorney-General’s Department for public comment or a Parliamentary Committee may seek public submissions on issues raised in a Bill. Last year, in the case of the Copyright Amendment Act 2006 (Cth), the Attorney-General’s Department sought comment on the proposed technological protection measure provisions, while the Senate Standing Committee on Legal and Constitutional Affairs conducted a broader inquiry into the overall Bill, prior to its being passed into law.

However, making a public submission to a Bill can be a difficult task. Individuals who have an interest in a Bill but who do not have expert qualifications may be deterred from voicing their opinion. Therefore, a wiki is a very democratic way of allowing individuals to contribute to both the text of laws and the governance of a country (according to a Sydney Morning Herald report on the wiki, NZ Police Superintendent Hamish McCardle has described it as a "new frontier of democracy.") While reading this story I thought back to the many seminal discussions on commons-based peer production by Yochai Benkler, particularly his 2006 book The Wealth of Networks: How Social Production Transforms Markets and Freedom. I would suggest that what we are seeing in the New Zealand case is the creation of laws by commons-based peer production, albeit without the economic aspect of production.

Despite that, I’m still not convinced as to whether this represents the future of law-making, or its demise.

Hat Tip: Many thanks to my housemate Abi for bringing this story to my attention and her very apt title!

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Monday, September 24, 2007


First US GPL Infringement Suit

The Software Freedom Law Centre (SFLC) has filed a copyright infringement suit against Monsoon Multimedia Inc in the first such lawsuit in the U.S. based on violation of the GNU General Public License (GPL). The Software Freedom Law Centre has claimed that Monsoon Multimedia failed to provide downstream recipients with the source code of the free software application Busybox, when distributing firmware which included Busybox, as required under the GPL.

More information is available here on the SFLC website and here on Arstechnica.

(Hat tip: Roger Clarke)

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Lessig on Virgin Mobile and CC Licensing Advertising Controversy

Lawrence Lessig has made some comments about the Virgin Australia 'Are you with us or what?' advertising campaign which I blogged about below.

Lessig has also posted a copy of the complaint available here.

Discussion on Slashdot is also available here.

(Hat tip: Matthew Rimmer)

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Friday, September 21, 2007


Virgin Australia and Creative Commons Named in Lawsuit

Readers might recall the Virgin Mobile Australia and Creative Commons licensing controversy I blogged about here and here. Basically, Virgin Mobile Australia launched an ad campaign titled 'are you with us or what' which used Creative Commons licensed images available on Flickr. Red flags were raised because Virgin had added comments to the images that some considered derogatory. Further, issues such as the lack of a signed model release form, privacy, moral rights and whether the terms of the license have been satisfied were also raised.

As I have stated in a previous post:
"I think it is essential to reiterate that there are multiple legal issues at play and it is important not to get them confused. While I spoke about issues regarding attribution requirements under the license in my previous post, it is important not to mix this up with moral rights under the Copyright Act (which applies in Australia and are explicitly referenced in the Australian Creative Commons licences, but not in other jurisdictions like the US and the US Creative Commons licenses). Further, moral rights, and terms under the license apply in relation to the copyright owner/licensor- which in many cases is the photographer rather than the individuals in the photographs.

In some respects their advertising campaign is a very interesting use of Creative Commons licensed materials, providing some nice publicity for the photographers who have chosen to add an open license to their material which permits commercial use. However, it is also important for Virgin to read the terms of the license closely and fulfil their obligations under other areas of law."
Very useful information can also be found in this post by Jessica Coates.

According to SMH the family of Alison Chang (a young girl in one the images used by Virgin Australia - with the slogan 'dump your pen friend') has named "Virgin Mobile USA LLC, its Australian counterpart, and Creative Commons Corp" as defendants. Apparently Chang's family have accused Virgin of failing to credit the photographer by name and also accuses the companies of libel and invasion of privacy. Chang's family and the photographer, Justin Ho-Wee Wong, are seeking damages.

As Jessica points out in her post mentioned above:
"...some commentators have suggested that the failure to deal with the issue of model clearances represents a flaw in the CC licences. However, the licences make it very clear that they merely provide copyright permissions, and that they do not purport to deal with any other area of law. Due to the vast number of laws that can come into play when a person is using a copyright work (eg defamation, privacy, competition) it would be impossible for the licences, or the person issuing the licence for that matter, to definitively cover all potential legal issues in placing it releasing it for general use. There is arguably an onus on the person making use of the work to identify any laws their particular use might breach, and to make an effort to obtain any additional permissions that are needed - particularly if their use is large-scale and commercial."
I am not quite sure what will become of all this especially because of the array of laws and different jurisdictions in play. I am actually quite stunned that it has gone this far. It will be interesting to discover in what legal context Creative Commons was named as a defendant in this lawsuit. It is possible that this relates to Creative Commons licenses not dealing with the myriad of legal issues that could be relevant- if this is the case I can't see how this suit will be successful against Creative Commons (for the reasons Jessica points out above).

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Wednesday, September 19, 2007


Cory Doctorow on Free Data Sharing

In this article in the Guardian Corey Doctorow discusses the benefits of free data sharing. Doctorow notes "like a bottled water company, we compete with free by supplying a superior service, not by eliminating the competition".


Tuesday, September 18, 2007


Mediadefender Emails Hacked

Mediadefender, a company that attempts to thwart piracy using curious techniques (for example, flooding P2P networks with spoof files) are the subject of a whole lot of criticism after thousands of company emails have allegedly been revealed to the world courtesy of Hackers, calling themselves 'Mediadefender-defenders' (see SMH article here).

Mediadefender had previously been accused of running a site called MiiVi offering downloads of copyright protected materials. Some have theorised that the site was used to entrap users. Ryan Paul at Ars Technica writes:
"The MediaDefender e-mails leaked this weekend confirm beyond doubt that the company intentionally attempted to draw traffic to MiiVi while obscuring its own affiliation with the site. The e-mails also show that MediaDefender immediately began to recreate the site under a different name and corporate identity soon after the original plan was exposed."
The emails apparently also reveal discussions with the New York Attorney-General's office and possible provision data to this agency. The emails also allegedly contain a draft contract with Universal Music Group, which details the company's pricing structure and 'services'.

Later Paul writes:
"Although many of MediaDefender's innermost secrets have been laid bare by this leak, there are many aspects of the company that remain shrouded in mystery. The ultimate purpose of the MiiVi site, for instance, is still an enigma. In some ways, the information in these e-mails raises more questions about MiiVi than it answers. It is likely that many additional details about MediaDefender's operations will be disclosed to the public as new secrets are uncovered in the e-mails. The rate at which these e-mails propagate across the Internet may also stand as a testament to the difficulty of trying to stand between consumers and their torrents."
Torrentfreak interestingly points out:
"For a business model that gets its life-blood from piracy, in a twisted way this leak is likely to help generate even more business and develop the market. Funny old world."
And all in time for 'International Talk Like a Pirate Day' tomorrow.

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Monday, September 03, 2007


Creating Commons at APEC

Australian readers may be aware that the 2007 APEC Summit is being held in Sydney this week. APEC stands for Asia-Pacific Economic Cooperation, with 21 nations belonging to this group, including the United States, Russia, China, Thailand, Singapore and, of course, Australia. A number of big names are heading to town for the APEC Summit, including President George W. Bush (who arrives tomorrow for a few days down under prior to the big Economic Leaders’ Meeting this weekend). However, many Sydneysiders aren’t happy with the prospect of APEC. Although workers in the Sydney metropolitan area are being given a public holiday on Friday to keep us all out of the city, a huge wall has been erected around a 5 km area in the central business district, and police have been given additional powers to handle any APEC strife.

Here at the House of Commons, however, we ask the big questions and the question that I wanted answered was how many of the APEC nations have branches of Creative Commons and CC licences? I headed over to the Creative Commons Worldwide page to find out.

The good news? Creative Commons is present is in all but four APEC jurisdictions, albeit in various stages of porting licences. See below for the full details. I have to admit that this copyright-progressiveness makes me feel a bit better about the giant blockade.

Creative Commons “Licensed Jurisdictions”

Australia, Canada, Chile, China, Japan, Malaysia, Mexico, Peru, South Korea, Taiwan, United States

Creative Commons Project Jurisdictions

New Zealand, Philippines

Creative Commons Upcoming Project Jurisdictions

Hong Kong, Singapore, Thailand, Vietnam

Creative Commons Not Present

Brunei, Indonesia, Papua New Guinea, Russia

Author’s Note – If you spot any jurisdictions here where you dispute either the presence or non-presence of Creative Commons, then drop us a comment!

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