| |
The ADA Monthly Intellectual Property
Wrap-Up
----------------------------------------------------------------
A monthly summary of recent legislation, cases, reports and other events
relating to intellectual property and the public interest, published by the
Australian Digital Alliance.
--------------------------------------------------------------
December
2003
--------------------------------------------------------------
[1] About this Publication
[2] RIAA V. Verizon Update
[3]
Norwegian Appellate court acquits DVD Jon
[4] Australian anti-spam law
passed
[5] Canadian Private Copying Levy
[6] KaZaa's Dutch Win
[7] I
can copy this, right?
[1] About this publication
This
summary of recent IP (but chiefly copyright) happenings of relevance to
Australia is published every month by email and on the Australian Digital
Alliance website at http://www.digital.org.au/issue/issue.htm. If you have any
suggestions as to what should go in the next issue, please let Miranda Lee know
by email: (mlee@nla.gov.au).
Nothing in this publication constitutes legal advice.
[2]
RIAA V. Verizon Update
The D.C. Circuit Court of Appeals has
surprised many by overturning a lower court decision (made in January 2003)
which affirmed Recording Industry Association of America's (RIAA) right to
enforce subpoenas issued to Internet Service Providers (ISPs). The new ruling
states that that the Digital Millennium Copyright Act's (DMCA) subpoena
provision [s512(h)] do not apply to peer-to-peer services as ISPs are unable to
remove content from their servers and copyrighted material is never stored on
an ISP's network, but transferred directly between users' computers.
File swappers are generally anonymous on peer-to-peer networks,
identified only by an Internet Protocol (IP) address assigned by their ISP.
However, the names and addresses of subscribers can be determined by reviewing
ISP records, which can connect IP addresses to individual accounts. Relying on
DMCA provisions, the RIAA had issued hundreds of subpoenas to ISPs over the
past months in order to obtain the identity of alleged infringers. Unlike
traditional subpoenas issued by law enforcement organizations, subpoenas issued
under the DMCA provision are not attached to an ongoing lawsuit - a factor
which brings civil rights into question.
The latest decision by the
Appeals court has however, been won on statutory rather than constitutional
grounds. The appeals court did not deal with constitutionality or privacy in
its decision to any extent but only said that Congress had not drafted the DMCA
to apply to peer-to-peer networks. The court issued its decision on the basis
that "It is not the province of the courts to rewrite (copyright law) in order
to make it fit a new and unforeseen Internet architecture, no matter how
damaging that development has been to the music industry". The ruling focuses
narrowly on an unconventional subpoena power and does not address the legality
of lawsuits already filed against hundreds of individuals.
The decision
has dealt a heavy blow to the litigation strategy of the RIAA who have issued
hundreds of subpoenas to seek identity of alleged infringers on the Verizon
network through the use of peer to peer systems. As a consequence of the
decision, the RIAA will now only be able to file a "John Doe" lawsuit against
each anonymous swapper in its litigation campaign against music "piracy". The
court process for the RIAA will now be considerably more labor-intensive,
costly and time-consuming which may limit the number of people the RIAA has the
resources to pursue; the RIAA however has stated that it will continue its
lawsuits against individual swappers, even if it is not able to use the
subpoena power.
The RIAA may appeal the decision or seek legislative
amendment and the decision is likely to spark a new round of political
skirmishing over copyright policy in the coming election year.
Decision
available here.
[3] Norwegian Appellate court acquits DVD Jon
The Norwegian
appellate court has upheld a lower court decision acquitting Jon Johansen of
all copyright charges. Johansen was back on trial earlier this month for his
role in creating a software solution that removes copy protection from DVD
films. Johansen's case attracted international attention in the first instance
when he helped crack the copy protection code as a teenager and then published
it on the Internet (see IPW Jan 2003). In his
first court appearance in January Johansen contended that he had only cracked
the code in order to be able to play DVDs on his computer instead of having to
purchase an expensive DVD machine in order to play his DVDs. The lower court
had ruled that Johansen did nothing illegal when he helped crack DVD copy
protection codes in 1999 and then publicized how he did it The case may be
appealed to the Norwegian Supreme Court.
[4] Australian anti-spam
law passed
The Spam Act 2003 will come into effect on April
11 next year with a grace period to allow businesses time to adjust their
practices where necessary in order to comply with the provisions. This new
legislation aims to eliminate all emails that are sent without the consent of
the recipient, but exempts government bodies, political parties, religious
organisations, charities and, subject to certain conditions, from educational
institutions.
The Act as passed prohibits the sending of unsolicited
commercial electronic messages that have an Australian link. This means that
commercial spam, sent either by mobile phone or email, cannot originate from
Australia and may not be sent to Australian addresses, no matter the place of
origin.
The legislation also allows for legitimate e-mail marketing but
includes key provisions to eliminate spam such as:
- An "opt-in" regime for
commercial electronic messaging based on the principle of consent;
-
Standards requiring accuracy and a functioning unsubscribe facility;
- A
ban on the use of electronic address harvesting tools
- Encouragement and
support for the development of appropriate industry codes; and
- civil
sanctions including warnings, infringement notices, court-awarded penalties and
compensation for loss.
Under the new law businesses that persist in
sending spam will face penalties of up to $1.1 million for a single day of
infringements.
The Australian Communications Authority (ACA) will be
responsible for enforcing the legislation once its penalty provisions come into
effect and the National Office for the Information Economy (NOIE) will be
responsible for coordinating a 12-month information campaign about the
legislation and about spam, commencing early in the new year.
Given the
nature of the problem, the months following will prove to an interesting test
of the effectiveness of domestic measures to a global problem.
[5]
Canadian Private Copying Levy
The Copyright Board of Canada (CBC)
has recently released it's decision on the issue of private copying levy in
response to the Canadian Private Copying Collective's (CPCC) proposal to extend
existing levies (submitted to the CBC in May 2002).
The proposal
suggested that existing tariffs be substantially raised and expanded to cover
M3P players and other digital-memory products that carry music files. The CPCC
which already collects a levy on blank cassettes, recordable CDs and minidiscs,
and redistributes the levy on behalf of the Canadian music industry, put
forward the proposal on the basis that the growing popularity of CD burners and
free Internet music-swapping services substantially undermined the legitimate
market of creators. While the original rationale of the levy was to compensate
artists for the widespread activity of making personal copies of music that an
individual already owns, the proposal before the Copyright board sought to
compensate music creators in light of the changed nature and magnitude of
"copying", namely the emergence of P2P networks and popularity of file sharing.
The recent CBC decision creates a new levy on MP3 players/recorders and
which will range from $2 to $25, depending on how much memory the various
digital audio recorders have but freezes existing levies on blank CDs, analog
audiocassettes, MiniDiscs and other media.
The decision has generated
mixed reactions. While the CPCC has been pleased with the MP3 decision, it has
expressed disappointment at the (claimed) inadequacy of the levy and been
"perplexed" by the freeze on other recordable media.
Opponents of the
tariff have argued that the levy subsidises the Canadian music industry by
treating anyone who buys blank recording media as a potential music "pirate",
when in fact these same products are and can be used for other purposes such as
to store computer files, backup data, software and self-created music and video
content (computer hard drives were not included in existing provisions but was
mentioned in the ruling- the board decided to allow personal copies on a hard
drive until a fee ruling is made specifically on that medium or until the
courts or legislature signal to regulators otherwise.)
Other critics
have questioned the method of tariff collection and distribution, and
highlighted the need for clarity and fairness of distribution models.
The Board ruling has also prompted debate about ambiguous position of
Canadian law on the legality of downloading and uploading of files. Previously,
popular legal opinion held that uploading was illegal but that downloading for
personal use might be allowed. In the decision, the Copyright Board maintained
that uploading or distributing copyrighted works online appeared to be
prohibited under current Canadian law but the provisions which allow a copy of
works to be made for personal use does not address the source of that copy or
whether the original has to be authorized or noninfringing version.
Decision available here.
[6] KaZaa's
Dutch Win
The Dutch Supreme Court has dismissed a suit brought by a
music copyright agency against the developers of Kazaa. The ruling upholds a
March 2002 appellate court decision that stated that the developers of the
software cannot be held liable for how individuals use the program.
The
suit, filed by Buma/Stemra (an organisation which protects the interests of the
music industry) is the first to be dealt with by a national court and sets a
precedent on the legality of peer-to-peer technology across the European Union.
The decision affirms the legality of file-sharing programs but does not deal
with with the broader issue of the legality downloading via file-sharing
programs. The decision leaves Buma/Stemra in essentially a similar position as
the American recording industry (which has sued individual song-swappers for
tens of thousands of dollars in damages).
A parallel case against
Kazaa's parent company, Sharman Networks, remains pending in the lower
Californian U.S. court.
[7] I can copy, right?
Yes,
you can copy this publication. Feel free to send it to friends or colleagues,
print it off or even archive it on your website provided that all text is
included or, in the case of an excerpt, appropriate credit is
given
|
|
