Friday, October 14, 2011
panGloss: Digital IP job at Strathclyde
panGloss: Digital IP job at Strathclyde: Following fast on the news about the PhD and Postdoc, here is stage 3 of the world domination plan.. Strathclyde is appointing 4-6 new jobs...
Wednesday, October 12, 2011
Copyright Symposium 2011
Bram has had an exciting and thought provoking day at the Copyright Symposium in Sydney, a treat for anyone who has a 'thing' about copyright!
First, we had an overview from Francis Gurry, Director General of the World Intellectual Property Organisation, on the key issues being thought about and dealt with in WIPO. He presented an optimistic view on the improving dialogue between content providers and technology developers, signalling a possibility of some progress on future copyright solutions in the digital environment. It is a slowly, slowly approach to copyright reform generally, hopefully building confidence that reform CAN be achieved. Dr Gurry expressed the view that we need a digital roadmap to set out the elements of how we may get to an effective digital marketplace.
William Patry, copyright guru and Senior Copyright Counsel at Google, followed up with an entertaining and engaging presentation. The 'take away' from his presentation was that it was likely we would see a one stop shop for the whole world, selling digital content (I wonder what shop that may be??) and that global copyright reform needs to respond to consumer expectations (and yes he conceded creators should be paid for their creations). He argued that law may not be the answer to all of a problems, but rather should be viewed, as appropriate, as a tool to solve them.
We then had a response from Brett Cottle, Chief Executive of APRA and staunch defender of copyright, who reinstated the law as leader of change, rather than merely a follower. Brett disputed whether responding to the demand for instant gratification was a good thing. Importantly, he suggested that some merit may be found in the commercial/ non-commercial distinction in terms of formulating exceptions for the digital environment (of this, more tomorrow).
Francis Gurry's view on this was that whilst consumer expectations were important, they should be tempered somewhat with realistic allowances for payment of creators.
All in all a great session, which I think has set the scene for the next two days.
Kim Weatherall and Michael Williams followed this up with a session on the question of whether copyright needs radical reform or whether its foundations are sound (yes just that small and easy to solve q). Kim was characteristically interesting, well informed and had great slides.
We then had sessions on Authorship (is there a crisis?), doing business online (which ended on a depressing note, but we all agreed we value Australian content) and Traditional Knowledge. Bram notes that a highlight was the recognition that interactive games are the real growth sector (oh hoorah!)
Interesting and valuable things are happening here on the copyright front, stay tuned!
First, we had an overview from Francis Gurry, Director General of the World Intellectual Property Organisation, on the key issues being thought about and dealt with in WIPO. He presented an optimistic view on the improving dialogue between content providers and technology developers, signalling a possibility of some progress on future copyright solutions in the digital environment. It is a slowly, slowly approach to copyright reform generally, hopefully building confidence that reform CAN be achieved. Dr Gurry expressed the view that we need a digital roadmap to set out the elements of how we may get to an effective digital marketplace.
William Patry, copyright guru and Senior Copyright Counsel at Google, followed up with an entertaining and engaging presentation. The 'take away' from his presentation was that it was likely we would see a one stop shop for the whole world, selling digital content (I wonder what shop that may be??) and that global copyright reform needs to respond to consumer expectations (and yes he conceded creators should be paid for their creations). He argued that law may not be the answer to all of a problems, but rather should be viewed, as appropriate, as a tool to solve them.
We then had a response from Brett Cottle, Chief Executive of APRA and staunch defender of copyright, who reinstated the law as leader of change, rather than merely a follower. Brett disputed whether responding to the demand for instant gratification was a good thing. Importantly, he suggested that some merit may be found in the commercial/ non-commercial distinction in terms of formulating exceptions for the digital environment (of this, more tomorrow).
Francis Gurry's view on this was that whilst consumer expectations were important, they should be tempered somewhat with realistic allowances for payment of creators.
All in all a great session, which I think has set the scene for the next two days.
Kim Weatherall and Michael Williams followed this up with a session on the question of whether copyright needs radical reform or whether its foundations are sound (yes just that small and easy to solve q). Kim was characteristically interesting, well informed and had great slides.
We then had sessions on Authorship (is there a crisis?), doing business online (which ended on a depressing note, but we all agreed we value Australian content) and Traditional Knowledge. Bram notes that a highlight was the recognition that interactive games are the real growth sector (oh hoorah!)
Interesting and valuable things are happening here on the copyright front, stay tuned!
Wednesday, September 7, 2011
New post on GIs
Monday, July 4, 2011
US Supreme Court on videogame violence
The decision in Brown v Entertainment Merchants Association was handed down on 27 June 2011. Bram offers a very brief overview of the judgment which presents a variety of approaches to the legitimacy of the California Statute restricting the sale or rental of violent video games to minors.
The majority held that the California Act which prohibited the sale or rental of 'violent video games' to minors and required such games to be labelled '18' was invalid as it violated the First Amendment.
The Act identifies a violent video game as one where: 'the range of options available to a player includ[e] killing, maiming, dimembering, or sexually assaulting an image of a human being.' The game will be subject to legal restriction under the Act if it meets the following three additional requirements:
“(i) A reasonable person, considering the game as a whole, would find [the game] appeals to a deviant or morbid interest of minors.
“(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
“(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” §1746(d)(1)(A).
The opinion of the Court was deliverd by Scalia J. He confirmed that video games qualify for First Amendment protection. 'Like the protected books, plays, and movies that preceded them, video games communicate ideas- and even social messages- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection.' Because the Act constituted a restriction on the content of protected speech, the Act would be invalid unless California could demonstrate that it was justified by a compelling government interest and was narrowly drawn to serve that interest. The Court held that it failed on both counts. Scalia J noted the fact that it applied only to violent video games, when there is much other violent content, including tehe Saturday morning cartoons which were not covered by the impugned Act, and that the industry had already implemented a voluntary rating system which would assist parents in identifying unsuitable games.
Alito J wrote a concurring judgment on the narrower basis that the statute was too broadly drawn. He did not consider that it was necessary to reach a broader decision that the statute violated the First Amendment. Alito J disagreed with the majority judgment on a number of grounds, notably the assertion that violent video games were no different from violence portrayed in other media. Alito J makes a number of criticisms of the majority judgment, notably; 'the Court is far too quick to dismiss the possibility that the experience of playing video games (and the effects on minors of playing violent video games) may be very different.
This theme is also picked up in the dissenting judgments of Thomas and Breyer JJ. Thomas J undertakes a review of attitudes to childhood and child raising at the time the Founding Fathers were drafting the Constitution. He concludes that the concept of 'freedom of speech' as understood at that time could not possibly have included a right to speak to children without going through their parents. Therefore he concludes that the California statute is not unconstitutional as it does no more than restrict sales and rentals direct to minors. Parents and guardians can provide such games to their children if they wished.
Breyer J's decision focusses on the potential harm to children from violent video games. He attaches a long list of studies to his judgment which indicate that such games may cause psychological harm. Thus he concludes that the California statute is justified as it imposes only a modest restriction on speech at most.
The entire judgment is worth a close read.
The majority held that the California Act which prohibited the sale or rental of 'violent video games' to minors and required such games to be labelled '18' was invalid as it violated the First Amendment.
The Act identifies a violent video game as one where: 'the range of options available to a player includ[e] killing, maiming, dimembering, or sexually assaulting an image of a human being.' The game will be subject to legal restriction under the Act if it meets the following three additional requirements:
“(i) A reasonable person, considering the game as a whole, would find [the game] appeals to a deviant or morbid interest of minors.
“(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
“(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” §1746(d)(1)(A).
The opinion of the Court was deliverd by Scalia J. He confirmed that video games qualify for First Amendment protection. 'Like the protected books, plays, and movies that preceded them, video games communicate ideas- and even social messages- through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection.' Because the Act constituted a restriction on the content of protected speech, the Act would be invalid unless California could demonstrate that it was justified by a compelling government interest and was narrowly drawn to serve that interest. The Court held that it failed on both counts. Scalia J noted the fact that it applied only to violent video games, when there is much other violent content, including tehe Saturday morning cartoons which were not covered by the impugned Act, and that the industry had already implemented a voluntary rating system which would assist parents in identifying unsuitable games.
Alito J wrote a concurring judgment on the narrower basis that the statute was too broadly drawn. He did not consider that it was necessary to reach a broader decision that the statute violated the First Amendment. Alito J disagreed with the majority judgment on a number of grounds, notably the assertion that violent video games were no different from violence portrayed in other media. Alito J makes a number of criticisms of the majority judgment, notably; 'the Court is far too quick to dismiss the possibility that the experience of playing video games (and the effects on minors of playing violent video games) may be very different.
This theme is also picked up in the dissenting judgments of Thomas and Breyer JJ. Thomas J undertakes a review of attitudes to childhood and child raising at the time the Founding Fathers were drafting the Constitution. He concludes that the concept of 'freedom of speech' as understood at that time could not possibly have included a right to speak to children without going through their parents. Therefore he concludes that the California statute is not unconstitutional as it does no more than restrict sales and rentals direct to minors. Parents and guardians can provide such games to their children if they wished.
Breyer J's decision focusses on the potential harm to children from violent video games. He attaches a long list of studies to his judgment which indicate that such games may cause psychological harm. Thus he concludes that the California statute is justified as it imposes only a modest restriction on speech at most.
The entire judgment is worth a close read.
Thursday, June 30, 2011
Facebook Contempt of Court derails UK drug case
Head on over to Fortnightly Review to read up on this recent UK case, where a juror contacted a defendant on Facebook.
Wednesday, May 25, 2011
ALRC Review of Classification
Here they are! The Terms of Reference for the ALRC Classification review. Submissions close 15 July 2011, so Bram suggests you read the Issues Paper and make a submission asap! You can also subscribe at the Review website to receive the update newsletter.
Sunday, May 1, 2011
Update on Kookaburra case at Fortnightly Review
Here is a link to the latest edition of Fortnightly Review which updates the decision of the Full Federal Court in the EMI v Larrikin case.
Thursday, March 31, 2011
Counting Your Chickens..tweet, tweet...
How many followers do you have on Twitter? How many people do you follow and how regularly do you check their tweets? The power users of Twitter may have vast numbers of followers according to Twitaholic, which lists Lady Gaga at number one, with 8,096,522 followers, followed by others such as teen sensation Justin Beiber with 7,130,026 followers, but how many of these followers actually access and read their tweets? In Australia, Kevin Rudd still ranks at the top of the Australian list for number of Twitter followers at 945,418.
Similar questions may also arise with other social networking or blogging sites. According to Laurel Papworth, Australia’s social networking guru, in March 2010 there were about 1,950,000 people following the ACDC Facebook fan page and 1,132,000 following the Facebook fan page for Bananas in Pyjamas, with many following alternative BiP fan pages.
How many of these followers or fans would be counted for the purposes of determining damages in defamation in the event of a defamatory tweet or post?
This question came before the UK High Court in November 2010 in the context of a public dispute over allegations of match fixing in the Indian Premier League (‘IPL’) by New Zealand cricketer (and former captain of the New Zealand team) Chris Cairns, from an account apparently maintained by Lalit Modi, Chairman and Commissioner of the IPL and Vice-President of the Board of Cricketing Control for India. Lodi had been suspended from these positions in April 2010 and ceased in September 2010. In this action, Chris Cairns v Lalit Modi, Cairns complained of the tweet, made on 5 January 2010, which was deleted 16 hours later from the Twitter page (the ‘Tweet’), and publication of the Defendant’s words in the online cricket magazine Cricinfo UK. The action in November only concerned the issue of the extent to which the Tweet was read in England and Wales.
Whilst the question of extent of publication is relevant to damages, the Defendant in this case had sought to have the order that service of the proceedings out of the jurisdiction be set aside on the grounds that the plaintiff had not established (with respect to the Tweet) that a ‘real and substantial tort’ had occurred within the jurisdiction. The Court was presented with two sets of expert evidence. Dr Laurence Godfrey, well-known expert on internet defamation and litigant in the Use-Net related defamation cases in multiple jurisdictions, was instructed by the Plaintiff. Godfrey initially identified how a tweet may be distributed, directly and indirectly, for example, by re-tweeting or posting on other websites. He estimated that the Tweet would have been received by between 200 and 800 followers within the jurisdiction. He indicated an even higher number would have received the Tweet by indirect means, but did not given any estimate of an exact figure.
Mr Henderson, instructed by the defendant, provided a much smaller estimate of about 90 followers within the jurisdiction, a figure he then discounted by half to reflect the probability that half of this number would not have in fact read it or not seen it for other reasons. Therefore he arrived at a total figure of thirty readers in the jurisdiction. Following this statement and other information provided by Henderson, Godfrey revised his own figures down to a number of around 100 readers.
Further Lucy Middleton, a solicitor for the Defendant had attempted to contact the individuals within the jurisdiction who were potential readers of the Tweet to ascertain if they had, in fact, read the Tweet. She provided evidence to the Court that she had not been able to find contact details for the majority of potential readers. Of those she did mange to speak to, only two people confirmed that they had read the Tweet and one of those stated that he had been in Hong Kong at the relevant time.
Mr Justice Tugendhat accepted the arguments made on behalf of the plaintiff that despite the relatively small number of followers and the removal of the Tweet after sixteen hours, due to the sensational and topical nature of the Tweet, it would be reasonable to infer that the publication in the jurisdiction of the Tweet was much wider than the number of direct followers. There remained a real threat of wider publication.
Tugendhat J observed: ‘A claimant’s primary concern in a libel action is vindication, not damages for what has been suffered in the past. So the damage that has occurred before the action is brought may not give an indication of the importance of the claim. Vindication includes a retraction, or a verdict for the claimant, or a judgment to the effect that the allegation complained of is false. If one of these is achieved, then it may be unnecessary to pursue a further remedy by way of injunction. So a claimant can legitimately and reasonably pursue a claim where the publication that has already occurred is limited, when his purpose is to prevent, or at least limit, further publication to a similar effect being made in the future. But that is subject to there being a real prospect of further publication if the action is not pursued. A retraction or judgment in favour of a claimant can be expected to have the effect of preventing or limiting republication, even if a claimant is not asking for an injunction.’
Similar questions may also arise with other social networking or blogging sites. According to Laurel Papworth, Australia’s social networking guru, in March 2010 there were about 1,950,000 people following the ACDC Facebook fan page and 1,132,000 following the Facebook fan page for Bananas in Pyjamas, with many following alternative BiP fan pages.
How many of these followers or fans would be counted for the purposes of determining damages in defamation in the event of a defamatory tweet or post?
This question came before the UK High Court in November 2010 in the context of a public dispute over allegations of match fixing in the Indian Premier League (‘IPL’) by New Zealand cricketer (and former captain of the New Zealand team) Chris Cairns, from an account apparently maintained by Lalit Modi, Chairman and Commissioner of the IPL and Vice-President of the Board of Cricketing Control for India. Lodi had been suspended from these positions in April 2010 and ceased in September 2010. In this action, Chris Cairns v Lalit Modi, Cairns complained of the tweet, made on 5 January 2010, which was deleted 16 hours later from the Twitter page (the ‘Tweet’), and publication of the Defendant’s words in the online cricket magazine Cricinfo UK. The action in November only concerned the issue of the extent to which the Tweet was read in England and Wales.
Whilst the question of extent of publication is relevant to damages, the Defendant in this case had sought to have the order that service of the proceedings out of the jurisdiction be set aside on the grounds that the plaintiff had not established (with respect to the Tweet) that a ‘real and substantial tort’ had occurred within the jurisdiction. The Court was presented with two sets of expert evidence. Dr Laurence Godfrey, well-known expert on internet defamation and litigant in the Use-Net related defamation cases in multiple jurisdictions, was instructed by the Plaintiff. Godfrey initially identified how a tweet may be distributed, directly and indirectly, for example, by re-tweeting or posting on other websites. He estimated that the Tweet would have been received by between 200 and 800 followers within the jurisdiction. He indicated an even higher number would have received the Tweet by indirect means, but did not given any estimate of an exact figure.
Mr Henderson, instructed by the defendant, provided a much smaller estimate of about 90 followers within the jurisdiction, a figure he then discounted by half to reflect the probability that half of this number would not have in fact read it or not seen it for other reasons. Therefore he arrived at a total figure of thirty readers in the jurisdiction. Following this statement and other information provided by Henderson, Godfrey revised his own figures down to a number of around 100 readers.
Further Lucy Middleton, a solicitor for the Defendant had attempted to contact the individuals within the jurisdiction who were potential readers of the Tweet to ascertain if they had, in fact, read the Tweet. She provided evidence to the Court that she had not been able to find contact details for the majority of potential readers. Of those she did mange to speak to, only two people confirmed that they had read the Tweet and one of those stated that he had been in Hong Kong at the relevant time.
Mr Justice Tugendhat accepted the arguments made on behalf of the plaintiff that despite the relatively small number of followers and the removal of the Tweet after sixteen hours, due to the sensational and topical nature of the Tweet, it would be reasonable to infer that the publication in the jurisdiction of the Tweet was much wider than the number of direct followers. There remained a real threat of wider publication.
Tugendhat J observed: ‘A claimant’s primary concern in a libel action is vindication, not damages for what has been suffered in the past. So the damage that has occurred before the action is brought may not give an indication of the importance of the claim. Vindication includes a retraction, or a verdict for the claimant, or a judgment to the effect that the allegation complained of is false. If one of these is achieved, then it may be unnecessary to pursue a further remedy by way of injunction. So a claimant can legitimately and reasonably pursue a claim where the publication that has already occurred is limited, when his purpose is to prevent, or at least limit, further publication to a similar effect being made in the future. But that is subject to there being a real prospect of further publication if the action is not pursued. A retraction or judgment in favour of a claimant can be expected to have the effect of preventing or limiting republication, even if a claimant is not asking for an injunction.’
Tuesday, January 25, 2011
Duty to Play: virtual worlds research and ethics
Ren Reynolds and I have just published our article on Virtual Worlds research ethics. Read it here.
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