Litigation

Kookaburra sits in the old gum treeee, merrily infringing

With all the fuss over the iiNet decision today, it might be easy to overlook another interesting copyright judgment that was handed down just a few metres away.

In Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29, the owner of copyright in the children’s song ‘Kookaburra Sits in the Old Gum Tree’ successfully sued the Australian band Men at Work for infringing copyright in the musical work by reproducing the flute riff in its hit single, ‘Down Under’, which has become a kind of unofficial anthem for many Australians. Kind of ironic that the national spirit infringes copyright.

Update:The judgment has been released — more analysis coming soon.

Australian travel agent sues Irish web developer for breach of contract

Australian travel franchise Flight Centre has commenced proceedings against Datalex, an Irish web developer, alleging breach of contract and misleading or deceptive conduct. It’s a pretty standard commercial dispute, with a slight twist: a non-existent product. The facts run something like this: developer promises to deliver customised Fancy New Booking System by a certain date, said system currently being used by Big Co X, Big Co Y and Big Co Z; date passes with no sign of said FNBS; plaintiff learns that FNBS is somewhat less advanced than hoped — that it doesn’t, in fact, yet exist, and it turns out X, Y and Z have never heard of it either; plaintiff pays more money for developer to finish building aforesaid FNBS, or ends up getting someone else to do the job; everyone winds up in court. Allegedly.

[Datalex] said its product was being used by large travel agencies such as American Express, Trailfinders and Thomas Cook. … Flight Centre signed a ”master licence and services agreement” with Datalex to provide the database and booking engine … Datalex had said it could deliver within 12 months. … Flight Centre alleges it subsequently discovered [that] Datalex … products were not being used by large travel companies. It says several severe defects in the travel agent sales tool were evidence the product was still being developed - a fact Datalex later conceded. Flight Centre also accuses Datalex of delivering the product late and without all the required functionality.

"We're not copyright police": iiNet

The iiNet trial continues. During argument yesterday, Cobden SC for iiNet argued that to require internet service providers (ISPs) to forward notices of copyright infringement to their subscribers would impose an unreasonable duty on ISPs to ‘police’ their customers. The issue arises in the context of interpreting the requirements for authorisation liability under ss 36(1A) and 101(1A) of the Copyright Act 1968 (Cth), under which a relevant factor is whether the defendant took ‘reasonable steps’ to prevent the infringement.

AFACT argues that in refusing to take any action in response to notices it received from copyright owners, iiNet cannot be said to have taken reasonable steps, and should be liable as authoriser. iiNet argues that it didn’t — and, indeed, couldn’t — take any steps because to act on the basis of information obtained during data transmission would place it in breach of the Telecommunications Act 1997 (Cth) (which prohibits secondary uses of carriage data), and would in any case be an ‘inappropriate and certainly unreasonable step’ that amounts to copyright enforcement being ‘outsourced to the ISPs’.

The studios were asking for a change to iiNet’s entire business model that would require complex systems and processes for handling thousands of infringement notices issued by music and movie owners around the world, he argued.

He also reiterated iiNet’s claim that parts of the Telecommunications Act bridged to privacy laws that prevented the company from “using” information on its systems to enforce the notices.  Read more »

Google wins online defamation case: not a 'publisher' of website content

In an eminently sensible decision, Eady J has held that Google is not liable for defamatory material that appears in the extract displayed underneath search results.

Stated more precisely, Metropolitan International Schools Ltd v DesignTechnica Corporation [2009] EWHC 1765 (QB) now stands for the proposition that the facilitator of a defamatory imputation who, without human input or authorisation, causes that imputation to be conveyed without knowledge of its character, cannot be characterised as a publisher at common law. The case revolved around a forum thread (I do not endorse its contents) hosted on the first defendant’s website. That thread contained posts made by users alleging that the plaintiff’s distance learning courses were ‘nothing more than a scam’. The thread ranked highly (3rd and 4th) on searches for the plaintiff via Google.co.uk and Google.com. As is Google’s practice, the search results included extracts of matching text, including ‘Train2Game new SCAM for Scheidegger’ (you can see it here). The plaintiff argued that this was defamatory and commenced proceedings against DesignTechnica, Google UK and Google Inc.

Eady J held that Google Inc could not be liable, even assuming that the comment was defamatory, and accordingly ordered that an earlier decision allowing service outside the jurisdiction be set aside:

[48] I turn to what seems to me to be the central point in the present application; namely, whether [Google Inc] is to be regarded as a publisher of the words complained of at all. The matter is so far undecided in any judicial authority and the statutory wording of the [Defamation Act 1996 (UK)] does nothing to assist. It is necessary to see how the relatively recent concept of a search engine can be made to fit into the traditional legal framework …

[49] When a search is carried out by a web user via the Google search engine it is clear … that there is no human input from [Google Inc]. … It is performed automatically in accordance with computer programmes. … It is fundamentally important to have in mind that [Google Inc] has no role to play in formulating the search terms. Accordingly, it could not prevent the snippet appearing in response to the user’s request unless it has taken some positive step in advance. There being no input from the Third Defendant, therefore, on the scenario I have so far posited, it cannot be characterised as a publisher at common law. It has not authorised or caused the snippet to appear on the user’s screen in any meaningful sense. It has merely, by the provision of its search service, played the role of a facilitator.

For more details about this very interesting case, please continue reading.  Read more »

Facebook as service intermediary: Australian Court allows online service

In the first example of its kind, the Supreme Court of the Australian Capital Territory allowed notice of default judgment to be served on a number of defendants via Facebook. According to court reports, Master Harper made an order for substituted service via Facebook, ordering that the defendants could be validly served by sending a message (presumably a wall post or personal message) to their ‘Facebook pages’ which notified them ‘of the entry of and the terms of the judgment’.

This is an interesting example of an emerging role for social networks: default communications intermediaries. Courts, litigants and even employers are increasingly turning to online profiles and messaging services to locate and monitor individuals that can’t be found in another medium. Often, this is because the individuals concerned forget that their status updates, image uploads, full names and often more are visible to the world. What makes this case particularly interesting is that Facebook is here acting as a conduit not merely for information, but for the coercive processes of the Court. If the defendants, having been served with notice of default judgment, fail to overturn or challenge its validity, it will become final. In the absence of an alternative method of service, Facebook is involved in a critical step along the path to a final remedy.

Corporate cyber-espionage alleged by petroleum software developer

The president of Platte River Associates, a United States software development company, has pleaded guilty to charges of hacking into a competitor’s website and copying commercially sensitive files. The company develops specialist petroleum exploration software, and the target of the cyber-espionage was Zetaware, one of its chief competitors. It all smells rather suspect: the executive, a Mr Leonard, admitted to accessing a password-protected area of Zetaware’s website using a password he had been given, and then copying the files from an anonymous wireless hotspot in a Houston airport. When he mentioned the files in a Platte River staff meeting the following week, word leaked back to Zetaware and subsequently to the police. Leonard was sentenced to 12 months’ probation and a fine of USD $100 000.

One has to wonder about this case. Why were ‘sensitive documents’ left in an unencrypted format on a corporate website, protected only by a simple and widely-known password? How did Leonard happen upon the password? Perhaps there were information conduits on both sides — how else did word get back to Zetaware? Injury aside, is it possible Zetaware had a commercial motive of its own for ensuring Leonard was prosecuted? Although it’s unclear from the news reports whether the basis of the conviction was recorded under an anti-hacking or unfair competition statute, either avenue was potentially available to prosecutors. This is interesting because it reflects a growing overlap between subject-specific cybercrime legislation and generic norms of criminal conduct. This case is a timely reminder to businesses why private documents should never be entrusted to a public web server, whether or not protected by an .htaccess mechanism.

Cisco sued for GPL copyright infringement

The Software Freedom Law Centre (SFLC) has commenced proceedings against Cisco Systems Inc, alleging copyright infringement. The plaintiff argues that Cisco distributed software subject to the General Public License (GPL) without meeting the terms of the popular open source licence. Specifically, FSF alleges that Cisco’s subsidiary Linksys sold networking products containing GPL software without making available the source code to end users, or disclosing the inclusion of embedded GPL code. The suit will probably settle soon:

“Cisco is a strong supporter of open source software. Cisco takes its open source software obligations and responsibilities seriously and is disappointed that a suit has been filed by the Free Software Foundation related to our work with them in our Linksys Division,” said the spokesperson. “We are currently reviewing the issues raised in the suit but believe we are substantially in compliance. We have always worked very closely with the FSF and hope to reach a resolution agreeable to the company and the foundation.”

White Cows in Green Fields? Gateway Shareholder Class Actions Proceed

Last September, Gateway Inc, a United States manufacturer of consumer computer hardware, announced its intention to accept a takeover offer made by Acer Inc, the American subsidiary of a Taiwanese hardware and systems manufacturer. Acer offered cash consideration of USD $1.90 per share, valuing Gateway at just under USD $710 million.  Read more »

ISP Discovery in Civil Cases

Internet service providers ('ISPs') have become increasingly rich sources of information in complex criminal and civil matters. Parties in civil matters have used subpoenas to obtain information, but the California Superior Court has recently barred civil litigants from obtaining information from ISPs because the Electronic Communications Privacy Act (US) had no provisions for civil discovery. Attorney Leonard Deutchman argues that this goes against existing case law and privacy practice.  Read more »

Creative Sues Apple over iPod User Interface; Apple Counter-Claims

Creative Technology, manufacturer of digital music players, last Monday announced that its United States subsidiary, Creative Labs, has commenced proceedings against Apple in a United States federal court for alleged patent infringement.  Read more »

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