| |
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.
--------------------------------------------------------------
September
2003
--------------------------------------------------------------
[1] About this Publication
[2] RIAA Amnesty
[3] RIAA Subpoena
Process examined
[4] Digital Agenda Review Update
[5] Libraries lend
support in Grokster case
[6] 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 Amnesty
The Recording Industry of America Association (RIAA)
has announced an amnesty program for people willing to admit they illegally
share music files across the Internet. In return for the admission, the RIAA is
promising not to sue those who have raised their hands so long as they pledge
to delete the infringing material from their computers and undertake not to
engage in any further file-swapping.
The offer of amnesty does not
apply to the (approximately) 1,600 people who are already on the RIAA's
subpoena list or are considered "under investigation" (although there is no way
of ascertaining whether or not one is on the RIAA list). Of these 1,600 people
who have already attracted the attention of the RIAA, 261 individuals have had
cases filed against them in early September.
Commentators have been
sceptical of this RIAA initiative, noting that the RIAA has no power to protect
anyone from all civil suits; while the RIAA may not file against these
individuals, its members are not bound by the arrangement. In addition,
information pertaining to identity and acts of infringement by those who sign
up for the program, could be turned over in response to any valid subpoena. The
Electronic Frontiers Foundation (EFF) has also noted that individuals who sign
the template affidavits (provided by the RIAA as part of the campaign) may in
fact, open up themselves to criminal prosecution (through the U.S. No
Electronic Theft Act) as the signed admission may be used against
individuals to argue that these individuals were "wilful infringers".
At 29th September, 838 affidavits had been received in response to the
amnesty program.
It will be interesting to see how these affidavits
will be handled and how many others will sign up to the initiative.
[3] RIAA Subpoena process examined
A US federal appeals court
has heard arguments over the controversial subpoena provision introduced by the
1998 Digital Millennium Copyright Act (DMCA).
Earlier in the
year, the RIAA sought to force Verizon Internet Services to reveal the identity
of a Verizon subscriber in relation to the subscriber's alleged use of
peer-to-peer software to share music online. Verizon refused to divulge the
subscriber's identity, claiming that the subpoena provision didn't cover
alleged copyright-infringing material that resides on individuals' own
computers, arguing instead that the subpoena only covers material that resides
on an ISP's own computer.
A U.S. district court rejected Verizon's
interpretation of the DMCA subpoena provision, ordering Verizon to reveal the
subscriber's identity. The decision was appealed and hearings for the appeal
were held in mid September. Although the judges are yet to hand down their
decision, the exchange in the hearing suggested that the judges lent more
credence to Verizon's argument than the primary judge. All of the judges,
however, seemed to accept without issue that the copyright infringment is rife
on peer to peer networks.
If Verizon is successful in the appeal,
RIAA's court actions against file-swappers will be made more difficult as the
RIAA will be forced to file thousands of "John Doe" lawsuits with implications
for litigation costs (and further negative publicity).
Their decision is
expected in November.
[4] Digital Agenda Review
Update
The deadline for submissions to the Digital Agenda Review
closed on September 30. Over 70 submissions have since been published on the
Phillips Fox website (go to "Hot News"
and then to "Digital Agenda Review") including a few international submissions
(submissions were received from Electronic Frontier Foundation, Motion Picture
Association, Business Software Alliance).
The most contentious issues
out of the 30 that were outlined seem to be those issues surrounding
technological protection measures, circumvention devices and ISP liability.
Despite the repeated emphasis on the need for claims in submissions to
be based on "hard evidence", little data was available. It will be interesting
to see how Phillips Fox will reconcile the assertions in the submissions and
what recommendations they feel they are able to make given the scarce reliable
data produced by the submissions. The submission made by the Copyright Agency
Limited (CAL) indicated that it had commissioned some research in respect of
the effects of the copying provisions on the electronic publishing
market.(carried out by AMR interactive). Unfortunately the report by AMR has
been provided to Phillips Fox on a confidential basis, though, unsurprisingly
the conclusion reached by the report is that the current provisions unfairly
prejudice the interests of copyright owners.
The announcement of the
review of the Digital Agenda reforms by the Government were accompanied by
statements that the Review would NOT re-evalute the policy considerations
behind the reform. Accordingly, Phillips Fox's presentation of the issues
sought to simplify complicated issues of debate by treating each as distinct
while clipping opportunities for discussions on policy. This has resulted in a
very technical legal approach to analysing the relevant matters and an agenda
which did not encourage any real discussion on the substantive issues.
A few submissions voiced concerns about limitations of the Digital Agenda
review process in particular the "lack of discussion about the right of
communication, the application of the defence of fair dealing in the digital
environment, and the relationship about copyright and contract" (See p 2,
submission from Matthew Rimmer).
Phillips Fox is due to give their
report to the Government by the end of this year, a few months earlier than
announced previously (presumably timed with the anticipated conclusion of Free
Trade Agreement with the USA).
[5] Libraries lend support in
Grokster case
In
April this year, a
few major record labels and Hollywood studios lost their case against
Streamcast (distributor of the Morpheus software) and Grokster software in the
US district court over issues in relation to allegations of contributory and
vicarious copyright infringmen. The case was immediately appealed.
Five
major U.S. library associations (American Libraries Assoication, the
Association of Research Libraries, the American Association of Law Libraries,
the Medical Library Assoication and the Special Libraries Assoication) filed an
amicus brief in September, supporting the arguments of Streamcast and Grokster.
The central argument of the brief is that the district court accurately applied
the 1984 Supreme court decision of Sony v Universal City (better known
as the Betamax case) to the Internet. The Betamax decision stated
that Sony could continue to manufacture its Betamax VCR because Sony cannot be
liable and cannot be a contributory infringer where it has no direct involved
with any infringing activity.
The amicus brief submitted by the
library associations was prepared by the American Civil Liberties Union (ACLU).
The action taken by the library associations in an indication of the gravity
and importance of the issue not only for the entertainment industries but also
for its effects on education and research.
The brief can be viewed
from the Electronic Frontiers Foundation (EFF) case
archive.
[6]
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.
|
|
