Bram's Pyre

panGloss: Digital IP job at Strathclyde

2011-10-14T23:41:00.000-07:00

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...

Copyright Symposium 2011

2011-10-12T23:55:00.000-07:00

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!

New post on GIs

2011-09-07T19:44:00.000-07:00

A little to the left of Bram's usual interests, here is a blog on a forthcoming chapter on Geographical Indications, in the context of Old World vs New World. The Adelaide Uni wine blog is here.

US Supreme Court on videogame violence

2011-07-04T18:17:00.000-07:00

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.

Facebook Contempt of Court derails UK drug case

2011-06-30T00:49:00.000-07:00

Head on over to Fortnightly Review to read up on this recent UK case, where a juror contacted a defendant on Facebook.

ALRC Review of Classification

2011-05-25T00:03:00.000-07:00

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.

Update on Kookaburra case at Fortnightly Review

2011-05-01T17:18:00.000-07:00

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.

Counting Your Chickens..tweet, tweet...

2011-03-31T18:26:00.000-07:00

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.’

Duty to Play: virtual worlds research and ethics

2011-01-25T01:42:00.001-08:00

Ren Reynolds and I have just published our article on Virtual Worlds research ethics. Read it here.

New law to restrict manga content in Japan...

2010-12-15T17:08:00.000-08:00

See this article in Japan Today.... needless to say this will be controversial.

UK Government to review copyright law to 'fit the Internet age'

2010-11-07T22:03:00.000-08:00

Needless to say, Bram is exceedingly excited by this announcement:
http://www.bbc.co.uk/news/uk-politics-11695416
which will inevitably bring with it all of the old misunderstandings about what fair use law can actually do....
It is not a panacea for all the 'bad consequences' of copyright law. Sure it may be a little more flexible than the fair dealing provisions that we inherited from the UK (to which we have at least added parody and satire) but a universal solution it is not.
Anyway it will be a discussion that needs to be had and may pave the way for real improvements. Bram will be watching.
These may come in handy:
de Zwart, Melissa, Fair Use? Fair Dealing?. Copyright Reporter, Vol. 24, Nos. 1 & 2, pp. 20-37, 2006; Monash University Faculty of Law Legal Studies Research Paper No. 2006/09. Available at SSRN: http://ssrn.com/abstract=1069183
de Zwart, M.'An Historical Analysis of the Birth of Fair Dealing and Fair Use: Lessons for the Digital Age'(2007)INTELLECTUAL PROPERTY QUARTERLY, 60-91

Digital Interactive Symposium Part 2

2010-08-27T04:21:00.000-07:00

And we are back, after some coffee..

my paper on governance and contract issues, which I will post later. Then... another Aussie in the form of...

Nic Suzor: protecting autonomy and legitimacy

Emphasising that online worlds are based on community, online play is emergent. Line between public and private space become blurred: social spaces. EULA is there to protect rights of the provider, real disconnect between EULA and ongoing community regulation as a day to day issue. Gulf causes legitimacy problems. How can we have regulation and autonomy at the same time?

Koster's Bill of Rights, difficult to have universal rights. Universality is v v difficult when you are dealing with virtual communities. The important part is process, not substantive rights. So look to the Rule of Law! similar principles should apply to virtual communities. Tendency to reserve as much power as possible in the contractual terms and leave leniency to admin team.

Rules should be clear known and predictable, eg machinima rights. Problem is disconnect between laws and community norms. EULA may break on these points. Not as strong as we currently believe.

If communities are to be governed by contract, contract should be informed by governance theory.

Contractual terms are more likely to be enforceable if they are clear and consistent with practice. Lawyers need to talk to developers and customer service teams.

I concur!

Julian Kucklich: consent in context, and virtual world governance OR 'the virtual IS the normal'

Discussion of commodification of virtual worlds, and way in which items are manifested in physical terms.

Property and intellectual property not equipped to deal with the virtualisation issue. CC doesn't actually solve these problems because still built on traditional copyright (yep, I agree).

Utopian part of talk (self-described): bees swarming over the globe, like intellectual creation, pollinating and feeding from a range of plants etc, diversity. Result is global sustainability and diversity. This makes sense as greater diversity of flowers for bees in the city, whereas in the country you have limited gene pool of plant life. Will Self 'Inclusion' read this as it is also about bees.

Virtual world providers have a lot of data about their citizens. How can you govern production when it does not take place in a traditional territory? by a virtual population?

what is an avatar? not a representation but rather a multiplicity of identity shards. How does law deal with the change in the concept of the individual? Republican model becomes empirical, aggressive intellectual property regimes have been exported across the world eg Farmville.

That was the utopian excursion, so now some pragmatics: divide between people who want to reinvent everything and those who want to reuse existing paradigms, neither is possible.

Microtransactional model: q if this may be applied?

okay, lovely lunch break and apparently a bit less academic stuff this afternoon...!

Andy Moseby, Business Models in Virtual Worlds

wow, Zynga, has serious cash! and is buying up game coys by the handful.

lots and lots and lots of money pouring into games, social networking games are increasing as % of market share.

What do investors look at in acquiring targets? Discussion of various revenue streams and the likely income, what excites investors will be advertising models, large player base, etc but the big winner is virtual transactions: virtual goods, P2P trading, UGC and inviting friends. Herein lies the tension with what users what.

Revenue model changes game design eg quick kill/ short life for games where you have to insert coins. Farmville is based on the premise that random rewards will keep people coming back, like slot machines. Small games with social element are proving very attractive to investors because smaller less risky investment.

Dr Abbe Brown: Dispute Resolution and Virtual Property

What sort of disputes may arise in the VW context? broad range of existing legal issues. Interesting q: are the guilds in WoW cartels? what about abuse of dominant position? Discussion of the various parties to the types of disputes that might arise in vws, what will they fight about: money (real or virtual) mandatory action (will it be available, ie are damages an adequate remedy), remaining in the game. Likely to be more gamer-gamer disputes. Look at the existing forms of alternative dispute resolution eg UDRP, wikipedia. eBay Square Trade etc

Have we evolved a bit now, recognising that there WILL be disputes and they need to be resolved, rather than thinking that it is a utopia and there won't BE any disputes. EvE has the Caldera Tribunal and the CSM eg POS Bug.

Jas Purewal: Dispute Resolution and Virtual Goods (@gamerlaw)

What is the fuss about virtual goods?

Crystal Palace Space Station in Entropia Universe, sold for for $330,ooo in Dec 2009.

Farmville, 60million active monthly users.

US market expected to be $1.6bn in 2010.

but legal status of virtual goods remain unclear, consumers feel that they have ownership, this disconnect is a recipe for disputes. Hawaii case Smallwood v NCSoft (known as the game addiction case) claiming compensation for remaining game time and game assets. Also Zynga recently shut down Street Racing, and had to offer some compensation due to public pressure, but that was virtual currency in other Zynga games. It is possible there will be some litigation related to this.

Vaguely useful to look at cases on software, regarding whether they are goods or services, but these are inconclusive.

Interesting discussion of developments in the East, Vietnam pronounced in April 2010 that virtual items are not assets.

Then he presented a very useful practical checklist for developers, including need to develop an exit strategy.

A great session, thought provoking and interesting and proving how important these issues are now.

Digital Interactive Symposium

2010-08-27T02:31:00.000-07:00

So without further ado, the day begins...

Professor Peter Yu: Moral and Personality Rights and the Digital Dilemma

discussing the moral rights implications of digital alteration of images, Peter asks about user modification of in-world images/content, would this be a distortion of the creator's intentions/ moral rights?

Peter identifies 5 issues: semiotic democracy and creative reuse (Fisher, Lessig) and their role in digital literacy; moral rights and liberative reuse, free speech and communications issues; moral rights, deletion of digital content (Mayer-Schoenberger) relevant to right of withdrawal of work eg restoration of works of Kafka that he had ordered to be burned; obsolescence: are moral rights based on a tradition that is obsolete in a digital age?; and no easy solutions, given inalienability of moral rights and overlapping contractual rights including CC.

Personality rights: what can you do in the virtual world, not the same as RL?

Secondary liability eg City of Heroes case, what sort of liability do you want the game provider to have when they are providing the building blocks?

Andres Guadamuz: Avatar Rights Re-visited: Real ID and Augmented Reality:

questions regarding personality rights of avatars, is the avatar owned by the operator or the platform provider? most EULAs make it clear that the platform provider owns all characters etc except for other end of spectrum eg SL therefore avatars are locked in virtual worlds but this may be about to change.

Real money value of virtual transactions is increasing exponentially, assets held by avatars have commercial value. Andres discussed the coming phenomenon of augmented reality (a la William Gibson, Spook Country) meaning that avatars will no longer be trapped in-world.

And then he discussed RealID, linking identity of person and avatar, problems that can be created by access to user info. Apparently someone has conducted research on emotes in vws.

At some point we need to identify what is virtual identity is, character name, appearance and gender will change along the way, but the inventory/ account remains the same. This may be the obvious defining point for identification of rights.

More will follow after the break (and after my paper)...

DISE 10 Edinburgh

2010-08-26T09:38:00.000-07:00

Bram will be attending this event and will (if time and energy levels permit) provide a commentary on presentations: Digital Interactive Symposium Edinburgh 2010:

The Digital Interactive Symposium: Edinburgh 2010 focuses on the legal issues of computer games, virtual worlds and the issues that arise from the convergence of new and traditional media. Speakers include both academics and practicing lawyers. It is is an annual event organized by the Virtual Policy Network in conjunction with the University of Edinburgh.

Viacom versus the world

2010-07-15T00:37:00.000-07:00

Whilst Bram is on holiday, pop over to the Fortnightly Review to see Melissa's post on Viacom v YouTube, and a very interesting post from Kimberlee Weatherall on ACTA, as well as a range of other goodies and treaties!

that old ToS issue...another take: Stern v Sony

2010-03-30T23:42:00.000-07:00

Early this month, Greg Lastowka blogged at Terra Nova about the Stern v Sony decision which concerned the issue of whether Sony was required under the federal Americans with Disabilities Act to make reasonable accommodations to its game software to suit the needs of players with disabilities. In particular, the plaintiff who had visual and other learning difficulties required Sony to provide or enable mods which would provide visual and auditory cues.
The judge dismissed the claim on the basis that the relevant provisions of the ADA apply only to physical places or goods or services connected to physical places. The claim based on the fact that inability to fully participate in the games limited the plaintiff's ability to participate in gaming conventions organised by Sony was also dismissed.
As Greg L points out, the case again generates the question of cyberspace (or virtual environment) as a space, something that is becoming increasingly an issue as regulators are turning the eye of Sauron upon the question of whether and how such spaces need regulation. He states: 'If online spaces and social software, like Facebook and Second Life, are becoming new hubs of interaction and commerce, we would think the goals of the ADA should resonate in cyberspace as well.' However, he concedes that regulation may not be the best way to achieve this end.
One thing that struck me upon reading the complaint, was the claim that Sony had 'no process in place to address the removal of barriers for persons with disabilities.' Rather:
'The sole generic user communication process provided by Sony through which anyone, disabled or non-disabled, could attempt to request or suggest any kind of modification or otherwise address any type of user issues concerning the Products requires the individual(s) to accept a contract waiving his or her rights to a trial by jury and requiring mandatory binding arbitration, a change in venue as well as other similarly onerous provisions and which otherwise constitutes a contract of adhesion. Plaintiff has not undertaken to use this generic process because he does not wish to forgo his constitutional right to a trial by jury for the sole purpose of helping Sony come into compliance with applicable law.'
This seems to be the type of clause which fell foul of the Court in Bragg v Linden Research,and clearly the purpose of this argument is to put this at the forefront of the Court's mind (and although I am not convinced this is actually an accurate interpretation of the application and effect of the clause). VW providers may need to have a look at this mandatory arbitration clause to ensure it will not be struck out on the grounds of (US style) unconscionability.
Yet again we confront an issue of contract versus general law.
The Judge concluded:
'The problem with Plaintiff’s assertion is that he does not seek an auxiliary aid or service to foster effective communication at a place of public accommodation such as Sony’s conventions, or to take full advantage of the goods, services, and privileges available at the conventions, but to fully enjoy the video games, which as the Court has already concluded, are not sufficiently connected to a place of public accommodation. To hold otherwise would create potential liability under the ADA for manufacturers of all manner of products if those manufacturers failed to make available auxiliary aids allowing the entire panoply of individuals with disabilities the full enjoyment of their products. '
There are some issues here that need further exploration but legislation may not be the best first option.

ACMA Report: Online risk and safety in the digital economy

2010-02-21T21:48:00.000-08:00

Here is the third and final instalment in this series produced by ACMA pursuant to the Ministerial Direction made by the then Minister for Communications, Information Technology and the Arts, Helen Coonan, in June 2007.
The third report, dated December 2009, but released to the public in early February 2010, makes interesting reading for its change of focus. Even the title of the document Online Risk and Safety in the Digital Economy reflects this change.
The Report identifies two key trends resulting from an overall increase in participation in the online environment:
1. increased used of mobile devices to access the Internet; and
2. increased use of social media and online transactions across all age groups.
The increased uptake of 3G phones and the consequent increase in the use of such devices to access social media platforms, is noted by the Report as giving rise to new issues. The personal and private nature of mobile devices as distinct from computers, reduces the ability of parents to supervise the use of social media on these devices (and the ability to supervise use was observed by the Byron Review to be a key risk mitigation factor). This means that further work needs to be done on identifying and reducing risks created by such access.
Chapter 3 addresses online risk behaviours, particularly bullying. However, it draws attention to the fact that children may be both the perpetrators and the objects of cyberbullying, with a particular focus upon the impact upon teachers. Indeed, the Report also observes: 'problems such as sexual solicitation and cyberbullying are more often perpetrated by friends or peers' (as distinct from the anonymous kinky adult pervert we are used to being blamed for all of the bad conduct and bad behaviour that occurs upon the Internet!)
The Report also outlines the privacy issues being raised regarding Facebook and how these have been dealt with.
This Report makes for interesting and useful reading and displays a pragmatic and balanced approach to some key issues, without the usual hype and scare mongering that goes on in this area. It provides a good overview of some of the initiatives udertaken by overseas governments, particularly UK and Japan. It also contains some nice stats about online usage and most popular Internet activities by age group.

Copyright is the new black...everyone wants some of the action!

2010-02-16T21:20:00.000-08:00

Unless like Angel you have been kidnapped and locked in a box at the bottom of the ocean, you would have noticed the 'torrent' (pun intended) of copyright decisions issuing from the Federal Court in the last week. These are:
Roadshow Films Pty Ltd v iiNet Limited (No 3) [2010] FCA 24, in which the Federal Court held that iiNet (the third largest ISP in Australia) was not liable under the principle of authorisation for infringement of copyright in the films and tv shows owned by the Applicants by end users of the BitTorrent system. I will post my comments of this one in a later blog.
Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44, in which the Federal Court held that there was no copyright in the White Pages and Yellow Pages telephone directories. (okaaay, I'll see if I can find the energy to cover this one, but no promises)
and
Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29.
It is this last decision, which in some ways seems the simplest one of the three, which has been occupying my attention. Perhaps this is in part due to a sub-conscious affiliation and affection for the song 'Down Under'. Nevertheless, I do believe that more lies below the surface with this case, making it worthy of further exploration.
'Kookaburra' is described by the Court as 'an iconic Australian round'. Written in 1934 by Marion Sinclair, a Melbourne music teacher, the four bar work went on to achieve worldwide success as a camp fire and school yard favourite. It won a competition run by the Girl Guides of Victoria as a fundraiser and was published by Miss Sinclair (at her expense) in a booklet of three rounds, which was sold with the proceeds going to the Girl Guides. This gave rise to questions about the ownership of copyright which were dealt with in Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2009] FCA 799 (30 July 2009) which held that as between the parties, copyright in 'Kookaburra' had been held by Larrikin since 1990, having purchased it from the Public Trustee after the death of Miss Sinclair. (These arrangements were also subject to a 2000 deed confirming assignment to Larrikin following a dispute between the Public Trustee and the State Library of South Australia). And, how much did Larrikin pay for the "little ditty"? $6,100. According to an interview published in The Age, Mr Norman Lurie, the managing director of Larrikin/Music Sales, the song has since earned "hundreds of thousands' for Larrikin.
The Court held that two of the four bars of Kookaburra were reproduced in the 1981 recording of 'Down Under' (which incidentally was also described by the Court as an 'iconic Australian composition'). The Court went on to hold that the two bars represented a substantial part of 'Kookaburra'.
The Court concluded that there was a sufficient degree of objective similarity between the flute riff and the two bars of Kookaburra. In reaching this decision the Court relied upon expert evidence. The Court noted that in the case of musical works objective similarity is not to be determined by a note by note comparison but rather should be done by the eye as well as the ear. The judge appeared to place significant weight upon the fact that Colin Hay admitted a causal connection between the songs (ie that 'the flute riff played by Mr Ham while sitting in the tree was a direct musical reference to Kookaburra' although he was not aware of it at the time) and the fact that he sang the relevant bars of Kookaburra when he performed Down Under live at some time after 2002. The Court noted the failure to call Greg Ham (who added the flute riff to Down Under at some time after the song had been written by Mr Hay and Mr Stryker) and concluded that it was appopriate to draw an inference that Mr Ham had deliberately included the lines from Kookaburra to inject some 'Australian flavour' into the song.
The Court did not determine the percentage of the interest in the copyright which ought to be awarded to Larrikin (which was seeking 40-60% of the copyright, although Mr Lurie has since stated on ABC Radio that he believes the interest is closer to 25%). Further, the judge observed that the findings do not amount to a finding that the flute riff is a substantial part of 'Down Under' nor that it is the hook of that song.
A reading of the case leads me to the conclusion that the case is correct in identification of the law, I am just left wondering whether the case could have been argued differently. Does the fact that Colin Hay sang Kookaburra in a live concert necessarily lead inevitably to the conclusion that Down Under itself incorporates part of Kookaburra, could it not be argued that this was merely the performance of another (separate) song. Isn't this improvisation a part of the musician showing off his musical skill and knowledge of tunes that may fit well with (and not necessarily infringe) their song? and don't get me started about jazz.
It also raises some questions about the impartial listener and the role of expert witnesses.
The matter resumes on 25 February.

Stormtroopers Helmet Not A Sculpture

2010-01-04T20:22:00.000-08:00

This case is why I love my job, Star Wars plus copyright, it really doesn't get any better than this, unless someone out there has a copyright issue involving Firefly....?
So, here's the thing, you know that collection of Star Wars memorabilia you have hidden in the cupboard, it may not in fact be as artistic as we have come to believe (who says Angel figurines aren't art?)

In 1976 Andrew Ainsworth was approached by the makers of Star Wars (Episode IV, A New Hope) to produce stormtrooper helmets on the basis of original concept drawings produced by Ralph McQuarrie, and a clay model, which had been produced by Nick Pemberton. Ainsworth made some modifications to the design in the production process. Ainsworth kept the orignal moulds and in 2004 began using those moulds to produce helmets which he offered for sale via a website. Ainsworth had made sales of approximately US$14,500 via the website to customers in the US.
Lucasfilm brought an infringement action against Ainsworth in the US (US District Court of California) which granted a default judgment in favour of the plaintiffs and awarded Lucasfilm US$20 million in damages (consisting of $5 million for copyright infringement, $5 million for trade mark infringement and $10 million in compensatory damages). Ainsworth did not participate in the proceedings. The plaintiffs then brought an action in the UK courts seeking enforcement of the US judgment and claiming infringement under UK law.
The matter was decided at first instance by Mann J in Lucasfilm Ltd, Star Wars Productions Ltd amd Lucasfilm Entertainment Company Limited v Andrew Ainsworth & Shepparton Design Studios Limited [2008] EWHC 1878 (Ch). Mann J held that:

the helmets (and other elements of the uniform) were not sculptures nor were they works of artistic craftsmanship;
Even if the design drawings/prototypes were the subject matter of copyright, section 51 of the Copyright Designs and Patents Act 1988 provided Ainsworth with a defence, providing that: 'It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.' Further, section 52 provided a defence to Ainsworth;
Ainsworth had not manifested sufficient presence in the US to be amenable to US jurisdiction;
Lucasfilm could enforce its US copyright in the UK, granting an injunction restraining Ainsworth from advertising in or sending to the US any of the stormtrooper helmets.

The Court of Appeal, whose judgment Lucasfilm Limited, Star Wars Productions Limited, Lucasfilm Entertainment Company Limited v Andrew Ainsworth & Shepparton Design Studios Limited [2009] EWCA Civ 1328 was delivered by Lord Justice Jacob, agreed with all of these points, except that the US copyright infringement could be enforced in the UK.

On the issue of whether the helmets were sculptures, the Court of Appeal concluded, after an extensive review of authority, that 'a precise definition of that term is not possible which is why the judge has outlined a number of considerations which should act as signposts to the right answer.' Applying the various factors identified by the primary judge, the court concluded that: 'Although invented, the helmet and armour are still recognisable as such and have a function within the confines of the film as the equipment of the stormtrooper. They are, to that extent, no different from and serve the same purpose as any real helmet or armour used in a film.' Being utilitarian in purpose, neither the armour nor the helmets were sculptures. The toy stormtroopers were found to be 'mass produced plastic toys' and therefore did not qualify as sculptures either.

As the helmets were not a sculpture, the defence under s51 was therefore available to Ainsworth ie 'It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.' Further, s 52 was also available to Ainsworth,meaning that the industrial application by Lucasfilm of design drawings meant that the underlying artistic works attracted only a 15 year period of protection.

The Court refused to enforce the US copyright, concluding that infringement of copyright 'is a local matter involving local policies and local public interests', and that it may involve a clash of the IP policies of different countries. Further, the Court said to do do may invite forum shopping. Such a matter would need to be dealt with by international treaty.

Finally, the judgment makes some interesting observations about jurisdiction. The Court of Appeal asks the question; 'whether the operation of an internet website by a person (or company) based in the UK amounts to presence in the US because sales have been effected through such a website to US customers.' The website quoted prices in US dollars and pounds sterling. It also provided shipping charges to the US and Canada. The trial judge had declined to find that this was sufficient to establish US presence. (Interestingly the Court does not mention Ward Group Pty Ltd v Brodie & Stone Plc [2005] FCA 471). The Court of Appeal concludes: 'it is not possible to say that advertising into a foreign country can render the advertiser present there, as the judge himself remarked. Indeed, no case has been cited to us where the targeting of sales in a foreign country by outside sales material has been held to be presence for these purposes.'

The Court concludes (at paras 193-194):

'It is true that the internet and its uses take us into a new world, and that its existence as it were in the ether (but based on servers physically located in the real world) has in general presented novel difficulties to the law and to regulators. It is also true that a website can be both wonderfully expressive and can also, subject to change and removal, be found repeatedly at its web address. The question, however, is whether for current purposes the internet or a website are fundamentally different from other matters which have enabled business persons to present themselves and their products where they are not themselves present: such as advertisements, salesmen, the post, telephone, telex and the like. We do not believe so, and Mr Bloch has been unable to show us any material from other jurisdictions, although he has searched for it, to suggest that a different answer is necessary. (Our own researches have led us to Dow Jones v. Gutnick [2003] HCA 56, 210 CLR 575, where the internet is discussed by the High Court of Australia in the different context of defamation. However, that Court was not there driven by the revolutionary omnipresence of the internet to a view of jurisdiction which was other than answerable to well-established principles.)
On the contrary, it might be said that the sheer omnipresence of the internet would suggest that it does not easily create, outside the jurisdiction or jurisdictions in which its website owners are on established principle already to be found, that presence, partaking in some sense of allegiance, which has been recognised by our jurisprudence and rules of private international law as a necessary ingredient in the enforceability of foreign judgments.'

There are also some interesting reflections upon implied obligations to assign and equitable interests in copyright.

An interesting case, and we may not have heard the last of it, May the Force be with you!

Call for Papers Visions of Humanity and Videogame Cultures Oxford July 2010

2009-11-24T15:33:00.000-08:00

5th Global Conference

Visions of Humanity in Cyberculture, Cyberspace and Science Fiction

Sunday 11th July 2010 - Tuesday 13th July 2010

Mansfield College, Oxford, United Kingdom

Call for Papers

This inter-disciplinary and multi-disciplinary project aims to explore what it is to be human and the nature of human community in cyberculture, cyberspace and science fiction. In particular, the project will explore the possibilities offered by these contexts for creative thinking about persons and the challenges posed to the nature and future of national, international, and global communities.

Papers, short papers, and workshops are invited on issues related to any of the following themes;

* the relationship between cyberculture, cyberspace, science fiction

* cyberculture, cyberpunk and the near future: utopias vs. dystopias

* science fiction and cyberpunk as a medium for exploring the nature of persons

* humans and cyborgs; the synergy of humans and technology; changing views of the body

* human and post-human concepts in cyber arts and cinema

* bodies in cyberculture; from apes to androids - electronic evolution; biotechnical advances and the impact of life, death, and social existence

* artificial intelligence and biomedia: self-organization as a cultural logic

* gender and cyberspace: new feminisms, new masculinities

* electronic persons, community and identity; cyberspace, cybercommunities, virtual worlds

* videogames and its impact on science fiction

* digital culture and interactive storytelling

* old messages, new medium: cyberspace and mass communication

* nature, enhancing nature, and artificial intelligence; artificial life, life and information systems, networked living

* human and post-human politics; cyborg citizenship and rights; influence of political technologies

* cyberpolitics, cyberdemocracy, cyberterror; old conflicts, new
spaces: elections, protest and war in cyberspace

* the state and cyberspace: repression vs. resistance

* boundaries, frontiers and taboos in cyberculture

* religion and spirituality in cyberculture

* technology vs. the natural? cyberculture and the green movement

The Steering Group welcomes the submission of pre-formed panel proposals. 300 word abstracts should be submitted by Friday 15th January 2010. If an abstract is accepted for the conference, a full draft paper should be submitted by Friday 28th May 2010.
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2nd Global Conference

Videogame Cultures and the Future of Interactive Entertainment

Wednesday 7th July 2010 - Friday 9th July 2010

Mansfield College, Oxford

Call for Papers

This inter- and multi-disciplinary conference aims to examine, explore and critically engage with the issues and implications created by the mass use of computers and videogames for entertainment and focus on the impact of innovative videogame titles and interfaces for human communication and ludic culture. In particular the conference will encourage equally theoretical and practical debates which surround the cultural contexts within which videogames flourish.

Papers, presentations, workshops and reports are invited on any of the following themes:

1. Videogames and Gaming

Theories and Concepts of Gaming. Identifying Key Features and Issues.
Critical Theory for Videogames: Moving past the Narratology/Ludology Debate.

2. Videogame Cultures

Emerging Practices in Online and Offline Gaming. Social Dimension of Online Gaming and Presence in Virtual Worlds. Videogame Modifications.

3. Ethical Issues in Videogames

Videogames for children. Depiction of Violence, Sex, Morality and their relation to Maturity. Propaganda Games. Censorship.

4. Videogame Technologies and the Future of Interactive Entertainment

New Forms of Interaction, Immersion and Collaboration in Videogames.
The Role of Innovative Interfaces.

4. Reception, Temporality and Video Games

Player Generations. Old Originals vs. Retro games. Indie Games and Low-Tech Aesthetic.

5. The Relations between Cinema and Videogames

Crossmedia and Transmedia Approach to Videogames. Cutscene Production. Machinimation. Interactive Storytelling.

6. Art and Experimental Games

The Aesthetic Aspects of Videogames. Performative Use of Videogames.
Art-Mods.

7. Serious Games and Virtual Worlds

Social Impact Simulations. Educational Use of Videogames. Documentary Videogames. Political Issues.

The Steering Group welcomes the submission of pre-formed panel proposals. 300 word abstracts should be submitted by Friday 15th January 2010. If an abstract is accepted for the conference, a full draft paper should be submitted by Friday 28th May 2010.

Avatar's Freedom of Speech? No way says US Federal Court...

2009-11-04T22:28:00.001-08:00

It appears that Erik Estavillo, the unsuccessful plaintiff in Estavillo v Sony Computer Entertainment America, 2009 WL 3072887 (ND Cal Sept 22, 2009) has decided to appeal that decision.
Estavillo was banned from the Sony Playstation 3 Network due to violations of the Sony ToS regarding use of the Network, with respect to his use of the public forums (allegedly due to verbal comments made by him while playing 'Resistance'). Estavillo claimed that this ban violated his free speech rights under the First Amendment.
In the brief judgment (so brief it would make my students cheer with joy!) Judge Ronald Whyte stated:
'Sony's Network is not similar to a company town. The Network does not serve a substantial portion of a municipality's functions, but rather serves solely as a forum for people to interact subject to specific contractual terms. Every regulation Sony applies in the Network is confined in scope only to those entertainment services that Sony provides. Although the Network does include "virtual spaces" such as virtual "homes" and a virtual "mall" that are used by a substantial number of users...these "spaces" serve solely to enrich the entertainment services on Sony's private network. In providing this electronic space that users can voluntarily choose to entertain themselves with, Sony is merely providing a robust commercial product, and is not "performing the full spectrum of municipal powers and [standing] in the shoes of the State.'
This characterisation may come as a disappointment to some who had been theorising that virtual worlds could be treated as a company town for First Amendment purposes, see, for example, Jack Balkin's 2004 article
Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds.
(see also his more recent article on The Future of Free Expression in a Digital Age for an updated approach to these issues.)
This is not the end of the story and the outcomes will be watched with interest.

new article on governance of virtual worlds

2009-10-19T16:03:00.001-07:00

The new edition of Journal of Virtual Worlds has been released, and it deals with 'Technology, Economy and Standards'. My article
Piracy vs. Control: Models of Virtual World Governance
and Their Impact on Player and User Experience appears in the Journal along with many excellent articles and think pieces. It examines issues arising from various governance models of virtual worlds, with a specific examination of the fascinating world of EVE. I look forward to the continuing analaysis of this important area.

Sex Bed generates Class Action Claim

2009-09-21T00:09:00.000-07:00

Eros LLC (the company owned and operated by Kevin Alderman/Stroker Serpentine in SL) and Shannon Grei have filed a class action complaint against Linden Lab with respect to a range of claims in trade mark and copyright. The Plaintiffs allege that Linden Lab has 'directly and secondarily violated the intellectual property rights of Plaintiffs and other Second Life Proprietors.' The essence of the claim is that Linden directly and secondarily infringes the trade marks of Eros, by using Eros's marks to sell infringing virtual goods in Second Life, and directly and secondarily violates the copyright of Grei by reproducing and displaying her copyright works within Second Life and by materially contributing to and supervising (sanctioning and benefitting from) the infringing conduct of others with Second Life.
The complaint emphasises the claim that Linden benefits from the infringing conduct by deriving revenue from the sale, use and display of infringing items.
The claim reflects the frustration of Kevin Alderman (or is it Stroker Serpentine?) that he has previously been compelled to take parties to court over infringements with respect to his SexGen bed and other intellectual property with little practical consequences. The claim alleges that there is much more that Linden could do to prevent the extensive trade in infringing items. Specifically, it claims that although infringement is prohibited by the Second Life Terms of Service and may be the subject of a claim under the Digital Millennium Copyright Act (DMCA) Linden does little to supervise or enforce any DMCA claims. Further, the DRM protection running in Second Life 'is easily circumvented and hopelessly ineffective'. Interestingly, the claim explains how those wishing to avoid DMCA liability can simply avoid compliance by creating a new account and loading the content under their new account name. Further, many content creators in SL are reluctant to bring a DMCA claim as it requires disclosure of their RL identity. The claim draws the analogy of a flea market where pirated goods are openly and cheaply available. The claim also forcefully makes the point that due to the small value of transactions in Second Life in terms of RL currency the cost of bringing individual legal actions is prohibitive, allowing infringement to continue unabated.
The claim makes interesting reading for those interested in the technical and legal operation of Second Life and provides an interesting argument regarding the limitations of the DMCA safe harbour scheme. It discusses the practical application of CopyBot and other copying programs.
See the coverage at Massively for more commentary.

Gov 2.0 Roadshow: visit to Adelaide

2009-09-01T18:07:00.000-07:00

Last night I attended the Adelaide leg of the Government 2.0 Taskforce Roadshow, intended to provide the public with the opportunity to comment on the Issues Paper and the work of the Gov 2.0 Taskforce. It was chaired by Nicholas Gruen, and the other Taskforce members in attendance were Alan Noble and Glenn Archer. Nicholas began by outlining his vision for the work of the Taskforce including: changing the default position in government to access to data being open unless it is determined for good reason that it should be closed, rather than the current 'closed' default position, and the encouragement of digital engagement with government through Web 2.0 techniques and the the opportunities and challenges in doing this.
The process aims to produce a Report by mid-November but this is currently looking unlikely, due to workload and time taken with the process thus far. The Taskforce has until 31 December to report.
Much of the discussion revolved around issues related to authentication and identity, apparently not an issue raised at any of the other Roadshow meetings. There was some debate regarding what aspects of identity and authentication were in fact Web 2.0 issues.
I was most impressed by Nicholas' discussion of 'engineering for serendipity'. Acknowledging that perfect co-operation between all arms of government was unlikely (at least in our lifetime) it was important to facilitate and design mechanisms that would at least encourage and support those willing and able to engage with technology to increase the potential for such interaction.
Predictably there was also a little cheering for the wonders of Creative Commons and its promise of freeing up material for innovation. (Here insert a little bit of standard lawyer bashing to the amusement of the audience). Again the mantra is free the information and innovation will follow. There was no time to get into a debate about ownership, access and use, and the differences between the three. However, we will need to be careful that these are identified and separated in any work following on from the report of the Taskforce, when it is produced.
The conclusions of the meeting were that there is a clear need for cultural change, due to the resistence both institutional and personal by many to the adoption of new technologies. This is particularly true in the public sector.
Finally, asked what academic input would be sought be the Taskforce Nicholas somewhat disappointingly said that academics do not appear to be on top of the game in this area (perhaps due the institutional restraints referred to above? and the need to publish in arcane journals??) Rather 'quasi-academics' (his term not mine) like Clay Shirky were doing all of the interesting work. Perhaps the academics need a change of culture too?
So apart from feeling a litttle wounded on account of being both a lawyer and an academic, it was an interesting experience. We still have a lot of work to do, but it was good to see that the members of the Taskforce were well across the issues and quite passionate about their task.

Government 2.0 Taskforce Issues Paper

2009-07-27T17:45:00.000-07:00

The Government 2.0 Taskforce, charged with the task of 'finding ways of accelerating the development of Government 2.0 to help government consult, and where possible actively collaborate with the community, to open up government and to maximise access to publicly funded information through the use of Web 2.0 techniques' is seeking your input. They are seeking comments and feedback on the Issues Paper, released on 23 July 2009.
Input must be received by the Taskforce by start of business Monday 24 August 2009.
Key issues are:

access to and use of public sector information
access and innovation
online engagement

The taskforce will provide a final report on it activities and achievements by the end of 2009, so if you have a contribution to make to this consultation act quickly!

Australia's Digital Economy: Future Directions

2009-07-23T21:57:00.000-07:00

On 14 July, the Minister for Broadband, Communications and the Digital Economy, Stephen Conroy, released the Australia's Digital Economy: Future Directions Final Report.
I will restrict my comments essentially to the copyright issues and implications raised by the Report. For those of you wondering what the 'digital economy' actually is, the Australian Government definition is:
'The global network of economic and social activities that are enabled by information and communications technologies, such as the internet, mobile and sensor networks.'
The Report is expressed to outline 'the areas of focus for government, industry and the community to maximise the benefits of the digital economy for all Australians.' The Report breaks up the elements of the successful digital economy among three stakeholders: government, industry and comunity, each with different outcomes.
For Government, the success factors include facilitating innovation, and reference is made to the outcomes of the Innovation Review : Powering Ideas, launched on 12 May 2009.
The Future Directions Report again emphasises the need to open up access to government information: 'In addition to promoting public sector innovation, government can also faciliatate private sector innovation for digital ecoomy benefit through more open information strategies and an innovation agenda designed to promote a strong culture of commercialising digital innovation.'
Whilst this is so broadly worded one can only guess what it may mean, it is intended to refer, at least in part, to access to knowledge platforms such as Creative Commons. The Report continues:
'A open access approach to the release of public sector information is a logical response to the digital economy and innovation benefits that can result from new and emerging digital use and re-use, subject to privacy, national security or confidentiality concerns. In this context "open access" means access on terms and in formats that clearly permit and enable such use and re-use by any member of the public. This allows anyone with an innovative idea to add value to existing public sector information for the common good, often in intially unforeseen or unanticipated ways.'
So if any of you have a fun idea for remixing a government report (for the common good) let me know! Although on a more serious note, this article by Paula Bray outlines an interesting project undertaken by the Powerhouse Museum using Flickr.
The Government 2.0 Taskforce has been instructed to advise and assist with respect to making public sector information more accessible and usable. (More about them in a later blog.)
The Report then picks up the question of copyright safe harbours, wondering aloud whether the present safe harbour scheme works effectively for some types of online service providers? The Report outlines the pros and cons and then states that the Government will be considering whether the scope of the safe harbour scheme should be expanded to include additional types of online service providers.
Finally, the Report states that the issue of peer-to-peer file sharing is currently being considered by Government, noting that the content industry has stated that file-sharing is 'a barrier to further investment in sustainable and innovative content initiatives in Australia ' (presumably this is only illegal file sharing). The possible solution noted by the Report is the 'three strikes' or 'graudated response' approach, pursuant to which ISPs would send notices to users suspected of unauthorised file sharing, outlining an escalating level of penalties on the user's account. So watch out for work on reform of this area soon. Only oblique reference is made to the current Internet filtering trials.

BTW on a related note, for some of my thoughts on the Innovation Review you can see my slides from the Australian Copyright Council conference in November 2008 here.
I will be presenting on the topic of copyright and innovation on 6 August here.

Young Australians' use of social networking: ACMA report

2009-07-12T19:50:00.000-07:00

The Australian Communications and Media Authority has released a Report prepared for it on the use of online social media by young Australians. The report is in two parts:

Qualitative Research Report
Quantitative Research Report

Some interesting aspects of the Qualitative Report:

The definition of social networking service used by the Report:

'A social networking service (SNS) can be defined as an online social network for communities of people who share interests and activities, or who are interested in exploring the interests or activities of others. As a member of a social networking service, individuals can "chat" with each other via messaging, email, video or voice chat, share photos and videos and post comments in online forums, blogs or discussion groups. Profiles may contain personal information such as real life photos and descriptive comments about the member.'

However, the Report recognised that different names were used for different types of services and no common terminology could be clearly identified.

Importantly, the Report concludes that the Internet is a regular part of the lives of young Australians aged 8 to 17 years and is part of both the home and the school environment. The nature of Internet use and the types of online forums used by children and teenagers changes as children mature, reflecting their social development and their gender. Younger children use the Internet for entertainment preferring game websites, with teenagers reaching out beyond their face to face friendship group to explore new friendships. (For more detail on this see the Quantitative Report)

These differing uses give rise to a range of different risks, both perceived and actual. The Report considered three key areas of risk: content, contact and privacy, which were identified by the EU Kids Online Report. Of these three, it appears from the ACMA Report that the dangers associated with a failure to protect their own privacy poses the most immediate and general risks to users. The notion of protecting their privacy is inconsistent with the desire to use these sites to attract attention ie the 'signalling' or 'waving' behaviour identified by Judith Donath. Further, the Report notes that whilst users may have a 'high awareness of the obvious risks of online use' young people still engage in dangerous behaviour, as '[e]xploring the unknown and pushing the boundaries is a natural part of growing up.'

The Report confirms that a great deal of effort is devoted to the creation and maintenance of online profiles. 'User-generated social networking services' are recognised by the Report as playing a key role in 'teenagers' efforts to conform to group norms and culture, and develop and maintain social currency.'

Interestingly though, the Report notes that parents 'held the view that social networking services were often seen by their children as part of a "fantasy land" where children and young people were either unaware or could easily believe that their interactions did not have real world consequences.' Whilst it may be believable that many parents held this view, I think further in-depth analysis is necessary to confirm that the users themselves hold this view. I also suggest that there could be a big difference here amongst the age-groups and the various online forums they are accessing. The consequences of this belief (where it exists) merits further exploration.

The Report concludes that young Australians are reasonably adept at recognising and managing risk, through a combination of abiding by the advice given to them (predominantly by schools and to a lesser extent parents, whose main authority is derived from the ability to withdraw computer access), commonsense, learning from experience (after encountering a problem online directly or by learning of friends' bad experiences) and finally, resilience. The Report's reflection of the need for young people to encounter and to learn from online experiences is refreshing and grounded in an absence of the hysteria which has frequently attended discussion of these issues in the Australian media. There is also a disconnect over what parents may see as the key risks and those which are actually encountered by users eg online predators.

That said, there is still a need to inform and educate users about the risks they face and, in particular, to warn them about the digital footprint they are creating. Therefore the report makes some key recommendations about future projects to warn and educate users about risks they may face. It makes for interesting reading and a launching place for more work in this area.

Will Second Life be banned in Australia?

2009-06-29T21:13:00.000-07:00

Okay, I have been standing on the sidelines, trying to resist the temptation to contribute to this debate, at least until we have some meaningful understanding of the true Australian Government position on this topic. However, until we have that, here are some thoughts:
You will not fail to have seen the media comments that the Australian Government is going to block access to online 'games' not suitable for under 15s. The problem arises partly because the highest rating for computer games under the Australian classification regime is MA15+ but it is complicated further by the question as to what regime an online world, such as Second Life, should correctly fall under. In Australia, content must be rated under the classification scheme, but actual enforcement of the scheme falls under the state and territory laws for film, publications and computer games. TV is subject to a self-regulatory scheme, but 'online content' is under the auspices of ACMA. This is all subject to change when the Internet filtering scheme is introduced.
By my reckoning Second Life is not a game, and therefore should not be classified as such. More correctly it should be recognised as an online community, and therefore not subject to the games classification regime.
The definition of 'computer game' is:
'5A Meaning of computer game
(1) A computer game is a computer program and any associated data capable of generating a display on a computer monitor, television screen, liquid crystal display or similar medium that allows the playing of an interactive game.
(2) A computer program, data associated with a computer program or a computer program and any associated data that:
(a) is capable of generating new elements or additional levels into a game (the original game) that is a computer game under subsection (1); and
(b) is contained in a device separate from that containing the original game;is also a computer game.
(3) However, a computer game does not include an advertisement for a publication, film or computer game.'
There is no time here to get into game theory etc and there is scope for a bigger project on this, but in short Second Life is not a game.
For example, see the Human Rights Guidelines for online games providers, developed by the Council of Europe in 2008, which state: 'Although online virtual universes, such as Second Life, are confronted with some of the same issues connected with online social interaction as games, they are, for the purposes of these guidelines, not seen as online games. In comparison with online games, such universes only to a lesser degree constitute a programmed experience under the control of a game publisher. Virtual universes also lack a specified gaming scenario and set of goals to achieve for the gamer, characteristics which are normally found in online videogames.'
Needless to say this is causing a lot of angst in the Australian SL community. For the Metaverse Journal's take on this, see here.
I think logically Second Life should be regulated as communication rather than content, given its function as a social networking platform. I will be monitoring developments closely.

Fair Dealing Back in Favour?

2009-06-23T23:42:00.000-07:00

After years of unpopularity at the hands of CC, fair dealing seems to be back in favour!
A couple of recent reads have suggested this:
I have finally got around to reading the Senate Standing Committee on Environment, Communications and the Arts report on The reporting of sports news and the emergence of digital media (May 2009). The Committee makes a couple of interesting recommendations:
5.23 'The committee recommends that the parliament should not amend copyright law to clarify the application of the news 'fair dealing' exception, unless future specific case law outcomes appear to warrant it.' (5.23) and 'The committee recommends that the government consider and respond to the Copyright Law Review Committee report and its recommendations.' (5.25)
According to the Senate Committeee Report most media organisations agreed that 'the current copyright laws, and particularly the fair dealing provisions, were working well, did not require amendment and were the best option for the future.' Well , I suspect what this really means is that they are worried about losing control over their own arrangements if they ask for legislative or other governmental intervention. What they are currently doing is not really a reflection of the fair dealing laws, but rather a gentlemen's agreement worked out in the shadow of fair dealing.
Further, the Report notes at 4.5: 'Maintaining the stauts quo would leave news media organisations and sporting bodies to continue to act on their own interpretations of fair dealing. There may be future legal action and this would provide direction as to how current fair dealing provisions appply to the digital media environment. The Attorney-General's Department agreed that legal proceedings on fair dealing and its application to digital media would be useful.' Too right, but no one wants to actually do it, let alone pay for it! Perhaps some of us may have learnt a valuable lesson from The Panel case? If not, then Premier Media Group might sounds some warning bells! Anyway, the Report continues: at 4.7 'Keeping the situation as it currently stands means that the responsibility for negotiating media accreditation agreements- and resolving disputes- will remain with news media and sporting orgnisations.'
There is also an interesting discussion of whether there should be copyright in a sporting event as a performance (more relevant to some sports than others one suspects, and no Fabio Grosso we haven't forgiven your performance at the 2006 World Cup!)
So it will be interesting to see if this may revive an interest in responding to the CLRC Copyright and Contract Report (2002).
It is difficult to overstate the importance of sports content in Australia, as the Report notes, both as news and as entertainment, and as the line between them becomes increasingly blurred, it is harder to distinguish between the two. The Report reflects a careful and balanced approach.
The other item is an article by Prof Steven Hetcher, who presented a paper at the recent Age of Digital Convergence Conference, on 'Using Social Norms to regulate Fan Fiction and Remix Culture' (forthcoming), a fun presentation and a thought provoking read.
Oh, and the Chaser is back tonight!