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The ADA Monthly Intellectual Property
Wrap-Up
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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.
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January
2003
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[1] About this publication
[2] ISP to break privacy
[3] Free
Trade Agreement with US
[4] Johansen DeCSS decision
[5] Eldred v
Ashcroft
[6] Kazaa launches counterclaims
[7] I can copy,
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] ISP to break privacy
American music industry
groups are increasing their efforts to lock down on peer-to-peer file sharing.
Whilst in simultaneous pursuit of Kazaa, industry groups are now pursuing users
and facilitators of the software.
In Washington D.C, a District Court
judge has ordered Verizon Internet Services to divulge the name of a Verizon
subscriber to the Recording Industry Association of America (RIAA) because the
subscriber allegedly used Kazaa peer-to-peer software to share music online.
The Digital Millennium Copyright Act 1998 (DMCA) introduced a new
provision in the US Copyirght Act which was primarily designed to limit the
liabiltiy of Internet service providers for acts of copyright infringement by
customers who are using the provider's networks. The RIAA relied on this new
subpoena provision of the DMCA to extract an order from the court that Verizon
release information and the identity of one of its subscribers for the purposes
of "protecting the copyright" of RIAA members. Verizon refused to divulge the
subscriber's identity, claiming that the provision didn't cover alleged
copyright-infringing material that is stored on the individual subscriber's
computers, rather it only covers material that resides on or is controlled by
Verizon's own computer.
An examination of the provision by the court
did not find Verizon's reading of the DMCA compelling as it would "give
Internet copyright infringers shelter from the long arm of the DMCA subpoena
power and allow infringement to flourish". In late January the court ordered
Verizon to reveal the subscriber's identity.
The ruling has grave
implications for consumer privacy and sets a dangerous standard for procedures
relating to DMCA actions. The ruling creates a precedent whereby information
about users of ISPs can be accessed by copyright owners in cases where
allegations of copyright infringement is made, with no due process as required
in other areas of law.
[3] Free Trade Agreement with the
U.S
Negotiations will begin shortly between the US and Australia to
conclude a Free Trade Agreement (FTA) between the two members of the World
Trade Organisation (WTO). The FTA will remove all tariffs and other restrictive
trade regulations on substantially all trade in goods between the parties with
the aim of increasing market access and liberalising international trade.
As an exception to the "Most Favoured Nation" principle which binds all
members of the World Trade Organisation, the FTA must adhere to certain
conditions to ensure that the agreement does not encourage the establishment of
new barriers or pave way for new discriminating measures between trading
partners. Although the push for the Agreement originates primarily from the
agricultural sector, intellectual property is increasingly a target area due to
the already substantial and growing economic significance in world
markets.
A number of issues have already been highlighted for
consideration and inclusion in the Agreement. These are parallel importation,
WIPO Internet treaties, enforcement of copyright, ISP liabilities, software
de-compilation and duration of protection.
DFAT has been in
consultation with stakeholders and interest groups including the ADA in order
to prepare Australia's response and position on copyright issues. One of the
primary concerns from public interest groups like the ADA is the likelihood of
increased pressure from the U.S. to align Australian copyright legislation and
practices to that of the U.S. Similar trade agreements currently being
negotiated with the U.S, such as with Singapore and the Americas (separately),
indicate that this position will be pursued by the US eg the latest draft of
the Free Trade Area of the Americas (FTAA) include copyright provisions that
call for all signatories to establish copyright terms that match those found in
the U.S. (for the latest draft of the
FTAA).
The
negotiation process is expected to take around 14 months. DFAT is open for
submissions throughout this time from all interest groups and have so far
received over 300 submissions. In relation to the chapter on intellectual
property, many of the submissions are from copyright owner groups who are
lauding the initiative.
A background paper on the FTA is available from
the Department of Foreign Affairs and
Trade.
The Executive Officer is currently preparing an ADA
submission on the Agreement and is open for consultation with interested
members.
[4] Johansen v Norway
After much anticipation
Norwegian teenager Johansen was acquitted early this month of charges against
him alleging that he acted illegally when he shared his DVD decryption code
(DeCSS) with others by putting it out on the Internet.
Norwegian
prosecutors, acting largely on a complaint from the powerful American
entertainment industry organizations (including the Motion Picture Association
of America) lost the case on all accounts. The Oslo court ruled that Johansen
did nothing wrong when he helped cracked the code on a DVD that was his own
personal property and ruled that there was "no evidence" that either Johansen
or others had used the decryption code for illegal purposes such are piracy.
Johansen therefore couldn't be convicted on such grounds, nor for acting as an
accessory to other alleged illegal activity. Citing Norwegian laws, the court
determined that it is not illegal to use the DeCSS code to watch DVD films
obtained by legal means.
The decision is an encouraging one that may
have ramifications for Internet use as well as content property.
An
abstract of the decision can be found
here.
Norway is expected to appeal the decision.
[5] Eldred v
Ashcroft
Although not wholly unexpected, the US Supreme Court
upheld (7-2) the constitutionality of the Copyright Term Extension Act of 1998
(CTEA), aka the Sonny Bono Act in the decision of Eldred v Ashcroft.
Eldred and others asserted that the US copyright term extension (from
life plus 50 to life plus 70) violated both the 'limited times' copyright
clause of the US Constitution and the First Amendment guarantee of freedom of
expression. The Court rejected Eldred's argument that the CTEA exceeds
Congress' power under the Copyright Clause and violates the First Amendment.
The court ruled that the "CTEA reflects judgments of a kind Congress typically
makes, judgments we cannot dismiss as outside the Legislature's domain". The
court added further that, "copyright law contains built-in First Amendment
accommodations" referring primarily to the idea/expression dichotomy and the
fair use defence.
Although the arguments put forward centred around
U.S. congressional power and U.S. constitutional law, the decision of the case
is a notable setback in the bigger war of ensuring balanced access to creative
works through the public domain and the provision of rewards for creators of
works. It is noted however, that the latter issue was given careful
consideration in the decisions of the dissenting judges who maintained that the
primary effect of the extension was to extend the term not to authors but to
their heirs, estates, or corporate successors.
The full decision can
be found at US Supreme Court
site.
[6] Kazaa launches counterclaims
The saga of
Kazaa, the online file sharing software, was introduced in the
November 2002
edition of the IP Wrap up.
Since November, a LA. federal judge has
ruled that the suit against Sharman Networks, the owner of Kazaa, could proceed
in the United States. Given the fact that Kazaa has been downloaded more than
143 million times with many of the copyrights at issue owned by
California-based companies, the judge determined that there was sufficient
business contact between California and the Vanuatu/ Australian run company so
that the U.S. court could assert jurisdiction in the matter.
The
decision can be found
here .
Kazaa has subsequently filed a countersuit against the major
record labels and Hollywood studios. The suit focuses on copyright misuse,
claiming that Hollywood interests have colluded to drive potential rivals out
of business. Kazaa requested that the court bar the music labels and studios
from enforcing copyrights on all music and movies until the alleged antitrust
violations have ended and its effects have dissipated. If granted, the
injunction would shield Sharman from damages and protect users of the Kazaa who
have infringed copyright of the labels' and studios' works through use of the
software.
A similar request was made by the predecessor to Kazaa,
Napster, and the counterclaim is not expected to be sustained due to the fact
that copyright misuse is a relatively new and unsettled area of law, with
claims difficult to prove. A key question is whether the privately held Sharman
can afford the high costs of gathering the evidence needed to make its case or
whether like Napster, the cost of litigation will send the company belly up
before its case can be made in 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.
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