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Thursday, August 28, 2008


A Practical Guide to GPL Compliance

The Software Freedom Law Centre has put out a guide that tells software vendors how to make sure they're complying with the GPL (see link, above). It's not hard to comply, but there are some good tips in there.

An example is to make sure you don't have a build guru - someone without whom your organisation/team could not build your software. Because if you couldn't build your software without your build guru, then people you distribute it to don't have much of a chance.

It also talks about what your options actually are in terms of basic compliance. So for example one thing I didn't know is that in GPL v3, they made it much more explicit how you can distribute source code, and that technologies such as the Web or Bit Torrents are acceptible. For example, peer-to-peer distribution of source code is acceptible as long as that is the medium being used to distribute the (built) software.

There's more good stuff in there, and even though I'm no Free Software vendor, it's an interesting read just from the perspective of an insight into how Free Sofrware compliance really works.

(Hat tip: Roger Clarke)

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Tuesday, August 26, 2008


IceTV Granted Special Leave to Appeal

Today IceTV was granted special leave to appeal to the High Court.

Another copyright case in the High Court? Be very afraid.

In May 2008 the Full Federal Court handed down its decision in the IceTV case, overturning the first instance decision and cementing (or so we thought...and so we will probably find out again) the far reach of copyright protection in Australia for compilations. IceTV's production of a subscription based interactive electronic program guide (EPG) was found to infringe copyright in Channel Nine's program schedule. Nine contended that IceTV had indirectly copied their program guides by using online aggregated guides. The Full Court (from the people that brought you Desktop Marketing) found that regardless of how IceTV created their EPG template (IceTV claim this was created by actually watching the television and noting down the programs and times, a process described as 'torture' at [41]), they did breach copyright by incorporating last minute program changes made by Channel Nine (IceTV compared their template to the schedules available in aggregated TV guides and updated accordingly). By updating the programming guide IceTV took a substantial part of Nine's program schedule and infringed copyright.

The Full Bench noted that the question of substantiality depends more upon the quality rather the quantity of what is taken:

"When the quality of the material taken by Ice is considered, the substantiality of the part taken becomes even clearer" (at [115]).

Apparently by 'copying' week to week changes IceTV "appropriated the most creative elements of the skill and labour utilised by Nine in creating the Weekly Schedules" (at [115]).

Will IceTV get up on appeal? Magic 8 ball says 'outlook not so good'...but the battle rages on...and we wait with bated breath.

Kim Weatherall has written some excellent commentary about the case here and here. It is also worthwhile to take a look at IceTV Iced: Kangaroos Hopping Mad by U.S. copyright guru, Bill Patry.

[Update: The High Court transcript is now available. Further reading at Peter Vogel's blog (IceTV's former CTO) and slides from this presentation by David Lindsay which Cath linked to earlier.]

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Sherman and Bently now in paperback

I realise that I may be a bit behind the times in writing this post, but I was very happy yesterday when I picked up from the UNSW bookshop my new paperback copy of The Making of Modern Intellectual Property Law by Brad Sherman and Lionel Bently. According to the paperback version was out in March, but I think there may have been a bit of a backlog. Nevertheless, this paperback edition joins a growing collection of paperback copyright editions on my office bookshelf, including all the Lessig tomes, and Rethinking Copyright by Ronan Deazley. Handy, and slightly less damaging to the hip pocket of a PhD student too!

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Thursday, August 14, 2008


US Court of Appeals for the Federal Circuit upholds free copyright licence

From the Creative Commons blog:

THE “IP” Court Supports Enforceability of CC Licenses
Brian Rowe, August 13th, 2008

The United States Court of Appeals held that “Open Source” or public license licensors are entitled to copyright infringement relief.

The Court of Appeals for the Federal Circuit (CAFC), the leading IP court in the United States, has upheld a free copyright license, while explicitly pointing to the work of Creative Commons and others. The Court held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. As a result, licensors using public licenses are able to seek injunctive relief for alleged copyright infringement, rather than being limited to traditional contract

Creative Commons founder Lawrence Lessig explained the theory of all free software, open source, and Creative Commons licenses upheld by the court: “When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.” Lessig said the ruling provided “important clarity and certainty by a critically important US Court.”

Today’s ruling vacated the district court’s decision and affirmed the availability of remedies based on copyright law for violations of open licenses. The federal court noted that ignoring attribution requirements contained in the license caused reputation and economic harm to the original licensor. This opinion demonstrates a strong understanding of a basic economic principles of the internet; attribution is a valuable economic right in the information economy. Read the full opinion.(PDF)

Creative Commons filed a friends of the court brief in this case. Thanks to all the cosponsors Linux Foundation, The Open Source Initiative, Software Freedom Law Center, the Perl Foundation and Wikimedia Foundation. Significant pro bono work on this brief was provided by Anthony T. Falzone and Christopher K. Ridder of Stanford’s Center for Internet & Society. Read the full brief.

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Thursday, August 07, 2008


CAL v NSW Analysis Part Two: Constitutional Validity of Free Uses of Works By Government

So at the end of my last post I suggested that, if the Government introduced new free use provisions, based on the UK legislative model, to deal with the decision of the High Court in CAL v NSW, then there may be some constitutional problems in doing so. I mentioned two provisions - section 51(xviii), the constitutional copyright power; and section 51(xxxi), the power with respect to acquisition of property on just terms.

Any arguments with respect to section 51(xviii) can arguably be easily dealt with. What's interesting about this power is that, for a long time, it was believed that the Parliament could actually do very little with respect to copyrights because of the narrow interpretation given in the decision of Attorney-General (NSW) ex rel Tooth & Co Ltd v Brewery Employees' Union of NSW [1908] HCA 94; (1908) 6 CLR 469. In that case it was found that the union label trade mark wasn't valid because such marks were not around in 1900, when the Constitution was framed. On that basis, for about eighty-five years it was believed that section 51(xviii) gave the Parliament very narrow power with respect to making IP laws. However, the 1994 decision Nintendo Co Ltd v Centronics Systems Pty Ltd [1994] HCA 27; (1994) 181 CLR 134 and then the subsequent 2000 decision Grain Pool of Western Australia v Commonwealth [2000] HCA 14; 202 CLR 479 - revealed that the HCA believed that section 51(xviii) was quite a wide power, leading to broader concerns that there might not actually be any limits on section 51(xviii).

As such, given this broad interpretation, it would be unlikely that such free use exceptions would fall foul of section 51(xviii), unless some sort of constitutional argument could be raised that the term "copyrights" as it appears in the Constitution requires that remuneration be given to the copyright owner. That, however, would probably cause all types of chaos, and is therefore unlikely. It would be interesting to run though...however, in light of the CAL v NSW decision, I am in no hurry to get another copyright case before the HCA.

It is the second provision, however, that may cause constitutional difficulties for these types of exception. Section 51(xxxi) has occasionally popped up in IP decisions over the last fifteen years (see Australian Tape Manufacturers Association Ltd v Commonwealth [1993] HCA 10; (1993) 176 CLR 480 and Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 221 ALR 448). This constitutional section was actually mentioned at several points in the joint judgment of CAL v NSW:

At [57]: In any event, with an echo of s 51(xxxi) of the Constitution, the Spicer Committee made its recommendation for government use of copyright material in the following terms:[51]
"The Solicitor-General of the Commonwealth has expressed the view that the
Commonwealth and the States should be empowered to use copyright material for
any purposes of the Crown, subject to the payment of just terms to be fixed, in
the absence of agreement, by the Court. A majority of us agree with that view.
The occasions on which the Crown may need to use copyright material are varied
and many. Most of us think that it is not possible to list those matters which
might be said to be more vital to the public interest than others. At the same
time, the rights of the author should be protected by provisions for the payment
of just compensation to be fixed in the last resort by the Court." (emphasis

And then again at paras [68] - [69]:
The purpose of the scheme is to enable governments to use material subject to copyright "for the services of the Crown" without infringement. Certain exclusive rights of the owner of "copyright material" are qualified by Parliament in order to achieve that purpose. It is the statutory qualification of exclusive rights which gives rise to a statutory quid pro quo, namely a statutory right in the copyright owner (here a surveyor) to seek "terms" upon which the State (excepted from infringement by the legislature) may do any act within the copyright (s 183(5)) and to receive equitable remuneration for any "government copies" (s 183A). With reference to the use by the Spicer Committee of the constitutional expression "just terms", it may be added that CAL conducted its case in this Court on the footing that the statutory scheme afforded "just terms" to copyright owners.

Given that CAL proceeded on the basis that the Crown use of copyright statutory licence scheme was "just terms" under section 51(xxxi), then it is arguable that removing this financial aspect may put such a provision in breach of section 51(xxxi). This may particularly be the case if the government continued to charge for the use of the survey plans. Certainly, as the law currently stands, it is available to the Government to use the fair dealing and other exceptions provided in the 1968 Act (in fact, as noted in the CAL v NSW joint judgment, if these provisions apply, then the statutory licence scheme doesn't - see paragraph [11].) However, would the inclusion of provisions that give the government a free pass to use copyright-protected works created by others, for fulfilment of their statutory obligations and what reasonably flows from those obligations, be valid under section 51(xxxi)?

In conclusion, although I have dedicated a whole chapter in my doctoral thesis to determining the boundaries of the copyright power of the Constitution and the concurrent effect on the Australian public domain, I will admit that future intellectual property cases are less likely to be concerned with section 51(18) and more to do with section 51(31). And, to end on a lighter note, that makes The Castle required viewing for anyone involved in intellectual property!

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CAL v NSW Analysis Part One: Possible Statutory Exceptions to Allow This Use

Regular readers will know that I am somewhat inclined to overreaction when the legislature or the judiciary does something with respect to copyright law that I believe errs against reason, common sense, and all the laws of God and mankind. Yesterday's High Court decision in Copyright Agency Limited v State of New South Wales [2008] HCA 35 was possibly one of them, but rather than continue that rant I want to focus on the aftermath on the case.

In the course of the decision, the High Court referred to the position in other jurisdictions with respect to Crown use of copyright works. It cited the UK position under the Copyright, Designs and Patents Act 1988 (UK) and the different types of what it would describe as "free use provisions" under that law. These are exceptions to infringement on the grounds of different types of public administration:
My immediate response to the CAL v NSW High Court decision (admittedly after the initial shock) was that the Federal Government could introduce provisions along these lines that would allow it to use materials for certain circumstances for free, beyond the fair dealing provisions, which would allow it to get around the issues created by the statutory licence scheme. Yes, the statutory licence scheme is actually supposed to ensure that copyright owners get paid for many of these types of uses. However, surely we can distinguish between uses that are connected to the undertaking of a statutory requirement and other uses for which the copyright owner should be remunerated. For example, a department produces a fact sheet on the perils of sunburn and uses as part of that fact sheet copyright protected photographs of people enjoying themselves at the beach. There is arguably no reason why such photographs need to be included, and in this case it would be preferable for the government to be charged for the use of those particular photographs.

Even without that distinction, however, another argument rears its head: the constitutionality of introducing such free use provisions. Two sections of the Australian Constitution would arguably be involved: section 51(xviii), which gives the Federal Parliament the power to make laws with respect to "Copyrights, patents of inventions and designs, and trade marks"; and section 51(xxxi), which also provides power to the Federal Parliament to make laws with respect to "The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws."

I have just realised that this post is getting very long, so it is going to be split into two. Constitutional analysis forthcoming!

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Wednesday, August 06, 2008


Copyright Agency Limited v State of New South Wales [2008] HCA 35

Out now (appeal allowed, relevant orders set aside).

Notable quote...
[92] Finally, and importantly, a licence will only be implied when there is a necessity to do so. As stated by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:

"This notion of 'necessity' has been crucial in the modern cases in which the courts have implied for the first time a new term as a matter of law."

[93] Such necessity does not arise in the circumstances that the statutory licence scheme excepts the State from infringement, but does so on condition that terms for use are agreed or determined by the Tribunal (ss 183(1) and (5)). The Tribunal is experienced in determining what is fair as between a copyright owner and a user. It is possible, as ventured in the submissions by CAL, that some uses, such as the making of a "back-up" copy of the survey plans after registration, will not attract any remuneration.
Hmmm...I'm sure housemate Catherine will have a few things to say about this one. See Catherine's post about the earlier Full Federal Court decision here.

Update: Read analysis from Weatherall here.

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Tuesday, August 05, 2008


The trip home

iSummit finished on Friday, including a great commons research forum where all the research track people discussed the future of commons research. There's not much more to say about that day, except to apologise to someone, I don't know who, for stealing their Stanley knife while taking down some wierd scaffolded canvas cube at the end of the day.

After the day finished, we all went to this big park, Moerenuma park I think it was called. There was silly dancing, of which I took part, but some people didn't take part and instead took pictures. Somewhere on the internet, you can probably find a picture of me dancing crazily, and for those readers who don't already know what I look like, try Flickr.

Catherine (my partner; did I mention she took the week off to come with me to Japan?) and I spent the weekend in Sapporo. We were invited by Robert Guerra to go for a day trip to the coast, but Catherine wasn't feeling well so we just hung around Sapporo, went shopping, and ate (more) good ramen.

Then it was a train to New Chitose airport, flying to Tokyo, train to Narita, overnight flight back to Sydney, and domestic flight to Canberra. I can't say it was much fun, and it turns out that sleeping on a plane (economy class, at least) is hard, though I did watch two movies: Kung Fu Panda and Red Belt. The former was definitely the best, though the latter was worth watching too.

But actually I think the best thing about the trip home was on the train from Haneda (Tokyo) to Narita airport, as the sun was setting. I only caught a few glimpses, but they were memorable: a very red sun through thin white cloud.

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Lessig's "Remix" out in October

Via Lawrence Lessig's blog I saw the quite groovy cover for his latest (and according to Lessig, his last) book on creativity and culture, Remix: Making Art and Commerce Thrive In the Hybrid Economy. According to the page on Remix it is due out on 31 October.

On the page Remix is also described as "an urgent, eloquent plea to end a war that harms our children and other intrepid creative users of new technologies. It also offers an inspiring vision of the post-war world where enormous opportunities await those who view art as a resource to be shared openly rather than a commodity to be hoarded". Them's fightin' words...

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Monday, August 04, 2008


Cutler "Review of the National Innovation System" Report Delayed

Earlier this year Senator Kim Carr, the Federal Minister for Innovation, Industry, Science and Research announced a review into Australia's innovation system, led by Dr Terry Cutler. The review sought public submissions regarding the nature of innovation in Australia (see the call for submissions here), due by mid-May.

The review received a whopping number of submissions - according to a media release from Dr. Cutler, about 630 - including one from Professor Graham Greenleaf, Chief Investigator of the Unlocking IP project here at UNSW, titled Unlocking IP to stimulate Australian innovation: An Issues Paper. Find it on Bepress as part of the UNSW Law Research Series here.

The committee was supposed to report to the Government by the end of July, but shortly after that time lapsed Dr. Cutler applied for an extension of time, and this has been granted by Senator Carr. According to the Review into Australia's Innovation System website, we can now expect the report sometime in September. You can also read more in Stephen Marchett's report in The Australian here, which describes this development as a "shock announcement".


Friday, August 01, 2008


Technical difficulties you will have noticed

I'm currently working with the kind people at AustLII who host this blog for us, to try to fix our technical difficulties - the permission problems on new posts. So without further ado, let's see if the problem is fixed...

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