Julian Assange: Hero or Villain, a binary choice

This is a transcript of my presentation to the Law, Literature & the Humanities Association of Australasia: Interpellations Conference (5-7 December 2013)

This is a difficult issue to write on definitively as the war on whistleblowers is being played out as we speak. Just a few days ago, the ABC was lambasted for reporting the news of the bugging of the mobile phones of the Indonesian President and his wife. Similarly, The Australian recently ran a facile editorial calling for Julian Assange to leave the Ecuadorian Embassy, ‘now the US Justice Department has made clear it has no intention of prosecuting’ him.

I have chosen to discuss this war in the context of two recent major movies: We Steal Secrets and The Fifth Estate. I want to consider whether the vilification of Assange occurring in the context of the fictionalised movie, The Fifth Estate, is balanced out by the ‘documentary’ of We Steal Secrets? Unfortunately both movies were based on biased sources and both were ultimately more concerned with telling an entertaining story that telling the truth. Further, not enough is reported about the facts to enable the audience to distinguish fact from fiction, but viewers will be left with the feeling that it has.

We have also witnessed a bizarre and unquestioned merger of fact and fiction. For example, The Guardian reported that, interviewed on ITV’s The Agenda in October 2013, the British Prime Minister, David Cameron, was asked to review The Fifth Estate. Observing that he had ‘managed to see the first part of the film’, the PM told The Agenda that Benedict Cumberbatch, who plays Assange, was ‘brilliant, fantastic piece of acting. The twitchiness and everything of Julian Assange is brilliantly portrayed.’ However, he then goes beyond a review of the film and the strange merger of fact and fiction begins in earnest. Cameron, and remember he has admitted to seeing only the ‘first part’ of the film, states: ‘he felt uneasy that in the film Assange appears to be more concerned about the fate of people who leaked documents to WikiLeaks – an apparent reference to Chelsea Manning – rather than people whose security may have been jeopardised by the leaks.’ In this swipe, Cameron dismissed very real concerns for Manning’s wellbeing as well as confusing, in his own and the readers’ minds the film and reality. Cameron continues: ‘There is an interesting  bit at the beginning when he says some of these documents are confidential, people’s lives are at risk and of course he is thinking of the people who have leaked them. Actually, you also need to think about the people whose lives are at risk because they have been leaked. In the bit of the film I saw that didn’t come out enough. But it makes you think.’ Later in the same interview, the PM is asked his views regarding the leaking of NSA documents by Edward Snowden and the suggestion that the UK Government was snooping on its citizens. He replied: ‘We have very good rules in this country. If a telephone call is going to be listened into that has to be signed off by the home secretary personally. There are very good safeguards in place.’ The merger of fact and fiction is complete.

So what is the model for The Fifth Estate? The whistleblower film is not a new genre, and there is a large number of films and books where the whistleblower is the hero, including John Le Carre’s recent book A Delicate Truth, which examines the story of Toby Bell: ‘the most feared creature of our contemporary world: a solitary decider.’ In the majority of these works, the whistleblower is celebrated as the hero. Such stories include: All The President’s Men (1976), The China Syndrome (1979), Silkwood (1983), The Whistleblower (1987), The Insider (1999), The Constant Gardner (2005), The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers (2009), The Whistleblower (2010) and Fair Game (2010).

However, these hero stories are not the model for The Fifth Estate. Rather,  I would locate it more directly in the ‘dangerous geek’ genre, akin to The Social Network and Jobs. Again, the temptation in these films is to depict the neurotic, anti-social geek as the person who uses up and ultimately abandons his friends. Steve Jobs is shown as effective in starting up the business, based on Wozniak’s computing skills, but he ruthlessly exploits and then abandons the friends who helped him build the first Apples in his parents’ garage. In The Social Network, Facebook founder Mark Zuckerberg is also shown as exploiting carelessly those around him.

I like a good ‘hero story’ as much as the next person. However, I believe it is dangerous and misleading to reduce the WikiLeaks story down to a good versus evil showdown. This is particularly the case when the story is still playing out and still has a very real set of consequences for vulnerable people, including Manning, Assange and now of course, Snowden. The exhortation to Assange to exit the Embassy cited above must be considered in the context of real life rather than dramatic consequences. This is not a new development in a movie plot line.

The Fifth Estate is preoccupied with the question of whether Assange is good or evil, as is We Steal Secrets. Both start from the angle that Assange could be a hero, and then expose him as paranoid, delusional and worst of all, uncaring by the end of the film. He loses his humanity to the machine. The technology of leaking literally becomes more important than the alleged lives at stake, but this is all done in the cause of narrative development and dramatic tension, rather than accuracy and truth. Yes these films are meant to entertain, but as the discussion above demonstrates, this is not the way it may be interpreted by audiences, who perceive it as an accurate portrayal of events.

Assange and others, such as Geoffrey Robertson, have recognised the dangers lurking in ‘fictionalised’ accounts such as The Fifth Estate. There was a well-publicised exchange between Assange and Benedict Cumberbatch online and reported in The Guardian (which it must be remembered is a key player in and source of the content for The Fifth Estate).

Assange’s letter to Cumberbatch included the following:

‘The bond that develops between an actor and a living subject is significant.

If the film reaches distribution we will forever be correlated in the public imagination. Our paths will forever be entwined. Each of us will be granted standing to comment on the other for many years to come and others will compare our characters and trajectories.’

Assange continues:

‘Feature films are the most powerful and insidious shapers of public perception, because they fly under the radar of conscious exclusion.

This film is going to bury good people doing good work, at exactly the time that the state is coming down on their heads.

It is going to smother the truthful version of events, at a time when the truth is on most demand.

As justification it will claim to be fiction, but it is not fiction. It is distorted truth about living people doing battle with titanic opponents. It is a work of political opportunism, influence, revenge and, above all, cowardice.

It seeks to ride on the back of our work, our reputation and our struggles.

It seeks to cut our strength with weakness. To cut affection with exploitation. To cut diligence with paranoia. To cut loyalty with naivety. To cut principle with hypocrisy. And above all, to cut the truth with lies.’

Cumberbatch’s response to Assange was discussed in another Guardian article, again breathlessly and heedlessly merging discussion of the film and real life politics, regardless of Cumberbatch’s status as an actor. (In fact the writer of the article admits to ‘a moment of genuine confusion’ when she thought she ‘was about to meet Assange himself.’).

The article provides a summary from Cumberbatch regarding what his response to Assange’s email was:

‘I don’t want to go into any great detail, but it took me four hours and the central thrust was: this is not documentary, this is not a legally admissible piece of evidence in a court of law, it’s not going to alter perception in a way that is actually politically going to damage you at all. People who will come to see this film will be savvy enough to see it as what it is; it’s a starting point,  that should both provoke and entertain. It will be a talking point, but your life, your private life, your persona, is fatefully intertwined with your mission – it cannot not be now. And to be honest, I think the sort of general perspective on you is still echoing from the kind of character assassinations that began way back when, with the initial leaks, and that is now heightened by the accusations of sexual misconduct in Sweden, and so you’re known as this white-haired Australian weirdo wanted for rape in Sweden who’s holed up behind Harrods in some embassy. So the misinformation about you is already there.’

There is some discussion of Cumberbatch’s thoughts on Assange’s childhood and the impact this might have had on his personality and mental state. And then, as with the interview with Cameron discussed above, the article moves to Cumberbatch’s attitudes to ‘cyber-whistleblowers’ including WikiLeaks and Snowden, which we are told are ‘decidedly ambivalent’: ‘He is alarmed by revelations of mass surveillance by the NSA and GCHQ, and doesn’t like the idea of anyone reading his private emails…but then adds, “Oh, but you might have stopped me from being killed on a tube I took last Wednesday. If they are saving lives, how can we say that’s less important than civil liberties?...”’. Whilst interesting in a general sense, why are we presented with Cumberbatch’s views on these important issues as if he is an authoritative source?

Geoffrey Robertson in his recent essay expressed the view in an essay that Assange’s withdrawal from  his autobiography project actually left the field open to negative portrayals of him and his work.

He also identifies several critical inaccuracies in the film which are important to the purported balance of its portrayal of events relevant to the major leaks. For example, in a moment of dramatic tension, the fictitious diplomat, played by Laura Linney, is involved in an attempt to extract a source from Libya. This plotline has clearly been included in the film to provide some human face to the leaks. However, as Robertson points out, it could never have happened in the context of the leaks of the diplomatic cables provided by Chelsea Manning. Manning did not have access to the level of intel ('top' or 'ultra' secret sources which would have placed the 'source' at risk as portrayed in the movie) (see Geoffrey Robertson, Dreaming Too Loud, 2013).

As Robertson states, there is no blood on WikiLeaks hands as a result of the leaks: 'The Fifth Estate will be propaganda if it propagates the lie that Assange has blood on his hands, and that Bradley Manning (who does not appear in the movie, although if 'Cablegate' has a hero, it is he) deserved the severe punishment (thirty-five years in prison) that he received.'

All of this discussion needs to be placed in the context of the mainstream media’s hostility (at worst) or ambivalence (at best) about whistleblowing. Despite the amendment of Australian whistleblowing laws in the Public Interest Disclosure Act 2013 (Cth), the whistleblowing actions of Manning and Snowden would not have been protected under that legislation had they occurred in Australia on the basis that the secrets they revealed (ie in part that the US Government is spying on everyone) is authorised by law.

The importance of these issues cannot be overstated. At a time when we should as a society be considering the consequences of the revelations that our communications, our networks of friends and families, our personal and supposedly private interactions, are considered fair game by democratically elected governments worldwide, we are, instead of interrogating these governments, turning on the whistleblowers. In Australia recently, revelations that Australia had tapped the phones of the Indonesian President and his wife, were met not with questions regarding how and why this was happening, but attacks upon the ABC for reporting on this scandal as it was ‘not news’.

We need to ask the big questions. Manning, Snowden, Assange and others have placed their lives and liberty on the line in order to tell us about the mass surveillance not only possible but occurring world wide, and all we seem to be able to do with this information, is to characterise them as misfits (and either mad or evil ones at that) which somehow saves us from having to deal with the difficult re-examination of ourselves that needs to be done in the wake of the revelations.

Alex Gibney's We Steal Secrets: anti-Assange propaganda (again)

In May I was invited to a preview showing of Alex Gibney's We Steal Secrets by Universal Pictures. In the interests of full disclosure, I was also invited to speak at a Q and A session hosted by ABC Radio Adelaide following a screening of the film in late June (so I have seen the film twice). Naively I believed that as a documentary, the film would depict not only the fascinating story of WikiLeaks, but also the astonishing bravery of those involved in the key leaks, especially Julian Assange and Bradley Manning. As it turned out, the film was a testament to the suffering of Bradley Manning, although it seems to reduce his motivations for leaking material to the consequences of sending a gender-confused loner to FOB Hammer in Iraq, rather than the motivations of a human being faced with exposure to horrific evidence of the actions of his own country in a time of war. For a more detailed analysis of and background to Manning's motivations, see Chase Madar's The Passion of Bradley Manning, and Manning's own opening statement from his trial. As for Julian Assange, the film goes to some effort to build up the viewer's admiration for Assange as a highly intelligent and strongly motivated digital activist at the beginning of the film, only to dramatically tear this down (as if it was an illusion or sham) half way through the film. Through selective use of interview subjects, editing and footage Assange is portrayed as strangely (and unnecessarily) paranoid, vain and power obsessed. I can only hope that people seeing this film without a strong background in what actually happened will be able to see through these storytelling devices.

On all of these points I would suggest you read Robert Manne's excellent review of the film in The Monthly, together with the later version with annotated comments, where Manne exchanges views with the film's director, Alex Gibney. I agree with Manne's comments and responses, and share his concerns with the limitations of the film. I would also add a few of my own (some of these are expressed elsewhere and I would also refer you to WikiLeaks annotated transcript of the film, also referred to by Manne and Gibney).

First, the title of the movie: We Steal Secrets, is a quote from former CIA/NSA director Michael Hayden, not from WikiLeaks. Why no-one seems to be at all concerned with the fact that the US Government admits to stealing secrets is beyond me. The revelations of Edward Snowden seem to have attracted a similarly distorted publicity: Snowden "stole" secrets from the NSA: if his claims are true (and I have no reason to doubt they are given that every Hollywood movie I have ever seen takes it as a given that the CIA, NSA and other three letter organisations are monitoring citizens all of the time) then whose secrets was Snowden stealing? By my calculations, he was just claiming them back again. So the title raises an important issue, but its implications are misleading. WikiLeaks was not claiming to steal secrets: it provides an anonymous publications outlet for whistleblowers: there is a difference.

Gibney seems very preoccupied with proving that Assange is paranoid, power hungry and deluded regarding his need for privacy. His exchange with Manne suggests that Assange is overly concerned about the Grand Jury indictment (which Gibney is not convinced even exists). At no time does Gibney present the alternative explanation which could also be drawn from the very footage he shows: Assange was thrust unaided and unsupported into the limelight with the media publication of the leaks. The movie does not show a person who wanted and demanded that limelight, but rather a person transitioning from a very private life to a very public one. Was Assange ready for it? No, but who would be? Rather than admiring himself, I felt Assange appeared very uncomfortable with all of the attention, but was willing to be there to present the message (but again, as a society we fixate on the messenger). And Assange was justified in his reticence, the mainstream media essentially then hung him out to dry (along with WikiLeaks): thanks for the copy now you are on your own!! There is no empathy at all for the personal difficulty that this must have caused Assange and no consideration of the long term impact it has had on Assange to accept the burden of publishing the leaks. If Assange is so hungry to be the public face of WikiLeaks then it must be accepted he has also paid an enormous price.

The listening device found this week at the Ecuadorian Embassy in London may also raise some questions about whether Assange's privacy fears are paranoid?

I also very much doubt Gibney's arguments that Assange is under no real threat regarding the possible extradition to the US from Sweden. I disagree absolutely with his interpretation of what Sweden has said ("if the charges are political (such as the Espionage Act) many countries-including Sweden - would refuse to extradite him." I AM a lawyer and that is NOT how I would interpret what Sweden or Judge Lindskog have said: "What is classified under US law is probably not classified under Swedish law, and enemies to the US may not be enemies to Sweden,'' he said. That is a rather big PROBABLY. Would you take the risk?

Another takeaway from the movie seemed to be that WikiLeaks (read Assange) failed Manning, leaving him to fall prey to the 'confessor and journalist' Adrian Lamo. Little is made about Lamo's entrapment of Manning (and his outright dishonesty) rather we are gently led through a series of implications that WikiLeaks enticed, entrapped and then used Manning. Certainly the complexities of anonymity create some unanticipated problems. We see these in the film in Manning's need to reach out, unfortunately to Lamo, who betrays him. However, WikiLeaks and Assange did not have the benefit of 20/20 hindsight and an in-house psychologist when opening up the anonymous drop box. Much is made of the 2009 Most Wanted Leaks and the encouragement of leakers to respond to that call. Thanks Gibney, you can do all of the work for the US prosecutors.

 I was also annoyed by some of the gratuitous comments made about Assange and his "cheap suits" and "$300 laptops": why is this relevant? Here is a person who has dedicated themselves to a public cause, and we have to worry about what they are wearing: oh please! A further gratuitous scene shows Assange dancing at a nightclub (the sub text being that Assange dances while Manning is detained in horrendous conditions), really this grates as an irrelevance at best. The film also repeats those claims about Assange being scruffy and unwashed during the days when the Afghan War Logs were being produced for publication, these comments coming from the journos who were happy to take the major leaks to sell their newspapers and then stabbed WikiLeaks in the back. For Gibney it seems that Assange must be saint or sinner, and never a human being, in order to be defensible.

 My most serious concern regarding the film is not actually the film itself. It is, as a piece of cinema, a compelling and engaging work. The scenes depicting the Manning chat logs are well presented and chilling. It contains some wonderful footage of Assange that I had not seen before. It presents the background of the WikiLeaks story clearly for those who don't know much about the context and nature of the links. For that reason I was happy to be involved in the Q & A. However, it is also for that reason that I am most concerned. If this is the main source for many people to learn about Assange, Manning and WikiLeaks, it is at best a half truth. And that is the risk, many will prefer to use this movie as a source of truth rather than merely a source. There are lots of better, more accurate sources of information. On this point also Gibney makes much of Assange's refusal to be interviewed for the project (despite this the film includes a lot of interviews and footage of Assange from other sources). This refusal is made out to have been made on the basis that Gibney refused to pay him a large sum of money and on the grounds that Assange has something to hide. There are multiple instances of Assange speaking freely available from a range of other sources. Assange is not living under a self-imposed veil of silence, he is active and communicating on a daily basis.

As Manne observes: "Gibney's powerful, accomplished and vivid film will for some time help shape opinion, especially among those members of the liberal Left on whom Assange now most relies. So in the conflict between them, it matters who is right." And this is the real danger. It presents itself as an impartial analysis of events, when it clearly is not so.

There is no balance when it comes to correcting attacks on Assange from a number of people who are well known to be hostile to him (and not above the cheap shots). Again, Manne notes that the film really ends with Domscheit-Berg's reflections on Assange, reflections which are distorted and biased by his own falling out with Assange.

 So I would urge you to not accept We Steal Secrets as a documentary which explains the story of WikiLeaks and Assange, but rather read beyond the film to real sources which explain Assange's motivations and the operations of WikiLeaks, such as Cypherpunks ( a book which has been curiously overlooked given that it clearly articulates Assange's views).

View the film for the interesting vision and range of opinions, but read more widely and be open to the truth from other sources.

NRL v Optus in the Full Federal Court: victory for Telstra

In a rapid piece of work, the Full Federal Court (Finn, Emmett and Bennett JJ) handed down a unanimous judgment in the Telstra v Optus dispute over recording of AFL and NRL games, National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd, [2012] FCAFC 59, on 27 April 2012. As reported by Bram in February  Optus had since July 2011, been offering its subscribers access to the TV Now service, which (subject to payment of the relevant fee) allowed users to select to record TV programs being shown on free-to-air TV, provided  that the 'record' button was selected prior to the commencement of the relevant show. The AFL and NRL had an exclusive deal with Telstra regarding the broadcast of footage of AFL and NRL games via the internet and mobile phones (a deal which is both lucrative and an important source of fudning for both codes). The Optus model was seriously and deliberately 'disruptive' of this licensing arrangement.

The Full Federal Court focused on the meaning of  'make' and 'maker' in the Copyright Act, concluding the Optus, or Optus together with the subscriber, was the maker of the film, sound recording or copy of the game (Rares J at first instance had found this was the subscriber, thus immunising Optus against liability through reliance upon s111). Following on from this finding, the FFC concluded that Optus was not entitled to rely upon the 'private and domestic use' exception under s111. This is consistent with Bram's own thoughts on the intended scope of that provision (which was introduced for time shifting, a practice which had previously been an unauthorised use under Australian law, it was never intended as a foundation stone of a commercial business model).

The Court held: 'Optus could be said to be the maker in that the service it offered to, and did, supply a subscriber was to make and to make available to that person a recording of the football match he or she selected. Alternatively Optus and the subscriber could be said to be the maker for Copyright Act purposes as they acted in concert for the purpose of making a recording of the particular broadcast which the subscriber required to be made and of which he or she initiated the automated process by which copies were produced. In other words, they were jointly and severally responsible for the act of copying.' [para 4]
Looking at the question of who does the copying, the Court noted that the TV Now service was designed, provided and marketed by Optus to enable programmes to be received, copied, stored and streamed to a subscriber's mobile or PC device. The Court considered the correct characterisation of the 'maker' of the copies in the context, noting the four possible alternatives:
'(i) they were made by Optus but as agent for the subscriber;
(ii) they were made by the subscriber as a principal using a facility made available by Optus pursuant to its contract with the subscriber;
(iii) they were made by Optus as a principal using its own technology but subject to its contractual obligation to store and to allow subscriber viewing of the recordings so made at the time(s) of his or her choosing; or (iv) they were made jointly by Optus and the subscriber both of whom, consistent with their contract, acted in concert with one another pursuant to a common design to have a broadcast copied on Optus’ technology and made available to be viewed by the subscriber.' [para 53]
Looking at the provisions of s 86(a) and s 87(b), the Court concluded that the term 'make' is directed to the creation of a physical thing  ie the embodiment of the copyright subject matter. This action is undertaken by the automated copying system: a system 'configured designedly so as to respond to a third party command to make that copy' [para 64]. 

The Court places a heavy emphasis on the creation, promotion and operation on the TV Now system being designed solely to be in constant readiness to respond to subscriber demands. This resulted in the Court finding that Optus was a 'maker' of the recordings. The Court then considered if the subscribers were also makers of the copies. They concluded: 'The subscriber, by selecting the programme to be copied and by confirming that it is to be copied, can properly be said to be the person who instigates the copying. Yet it is Optus which effects it. Without the concerted actions of both there would be no copy made of a football match for the subscriber. Without the subscriber’s involvement, nothing would be created; without Optus’ involvement nothing would be copied. They have needed to act in concert to produce – they each have contributed to – a commonly desired outcome. The subscriber’s contributing acts were envisaged by the contractual terms and conditions. How they were to be done were indicated by the prompts given on the Optus TV Now TV guide page. The common design – the production of the selected programme for transmission to the subscriber – informed the solicitation and the taking of a subscription by the subscriber; it was immanent in the service to be provided.' [para 76]

On this basis, both Optus and the subscriber could 'both properly be said to be jointly and severally responsible for the act of making the copies'. [para 77] The preferred view of the Court was that both Optus and the subscriber, acting together, were the makers of the copies.

With respect to s 111 the Court observes that: 'There is nothing in the language, or the provenance, of s 111 to suggest that it was intended to cover commercial copying on behalf of individuals. Moreover, the natural meaning of the section is that the person who makes the copy is the person whose purpose is to use it as prescribed by s 111(1). Optus may well be said to have copied programmes so that others can use the recorded programme for the purpose envisaged by s 111. Optus, though, makes no use itself of the copies as it frankly concedes. It merely stores them for 30 days. And its purpose in providing its service – and, hence in making copies of programmes for subscribers – is to derive such market advantage in the digital TV industry as its commercial exploitation can provide. Optus cannot invoke the s 111 exception.' [para 89] Bram agrees that the position argued for by Optus was way outside the envisaged scope of s111 and the system as developed and marketed by Optus goes beyond the analogy of a home video recording device, not the least because it allows platform as well as time shifting (a commercial advantage clearly not lost on Optus). The Court observed that analogies are not particularly helpful in this context (noting the differing outcomes in US cases dealing with indirect liability, such as Cartoon Network LP, LLLP v CSC Holdings Inc 536 F 3d 121 (2nd Cir 2008))

Given the joint and several liability, Optus having alone been sued, it was liable as the person who did the acts of copying.

It is likely, although unknown at this time, that Optus will appeal.

Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34

Proving yet again that copyright law in Australia is shaped by sport...

In July 2011, Optus began offering its subscribers access to the TV Now service, which (subject to payment of the relevant fee) allowed users to select to record TV programs being shown on free-to-air TV, provided  that the 'record' button was selected prior to the commencement of the relevant show. The AFL and NRL, together with Telstra, the exclusive licensee of broadcasts of the footage of AFL and NRL games via the internet and mobile phones (I am avoiding the terms devices here as this seems to be a point of contention in this instance) claimed that such recordings (and the necessary playback) were an infringement of copyright. The action was actually brought on the basis of  groundless threats of infringement under s 202 Copyright Act.

On 1 February 2012, Rares J in the Federal Court held that the TV Now service did not infringe copyright in the broadcasts of certain AFL and NRL games in 2011, Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2) [2012] FCA 34 .

The Optus subscriber using the TV Now service 'could select a program to record from an electronic program guide that would appear on any one of ...four kinds of device': a PC, Apple devices, Android devices or other 3G devices. Thus, once a program was selected to 'record' by a user, four individual copies would be made to support each of these platforms. Each individual user would also have a unique set of files made for their use ie multiple copies were made, each corresponding to an individual and unique request. These files were stored by Optus for 30 days, for playback by the user. who accessed the content via streaming. Users of Apple devices could view the content 'almost' live, ie subject to a two minute delay, due to differences in Apple file saving requirements. Each user has an allocated amount of recording time, depending on which 'plan' they had purchased. Users could only record TV shows shown in their 'home' region.

Optus relied upon s 111 Copyright Act, which (relevantly for our purposes) provides:

(1) This section applies if a person makes a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made.

Note: Subsection 10(1) defines broadcast as a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 .

(2) The making of the film or recording does not infringe copyright in the broadcast or in any work or other subject-matter included in the broadcast.
Note: Even though the making of the film or recording does not infringe that copyright, that copyright may be infringed if a copy of the film or recording is made.

The parties agreed that the Court should answer the following questions before proceeding to consider any further matters:

1. Who did the acts involved in recording the broadcasts?
2. Did s 111 mean there was no infringement of copyright? If there was infringment of copyright, was Optus liable for authorisation of copyright infringement?
3. When the recording was viewed, who did the acts of electronically transmitting the copyright workks?
4. Is streaming a communication 'to the public'?
5. Was Optus responsible for 'making the works available' online?
6. Was this 'to the public'?

Rares J concluded that the user of the TV Now service (rather than Optus)  'makes each of the films in the four formats when he or she clicks on the "record" button on the TV Now electronic program guide. This is because the user is solely responsible for the creation of those films.' [para. 63] Optus did not do any of the acts involved in recording the works, see para 68:  drawing the comparison with the photocopier in UNSW library in the Moorhouse case: 'it was impossible to say that the University did the act of photocopying by providing the photocopier, just as, in my opinion, it is impossible to say that Optus makes any of the films in the four formats that are created when a user clicks "record" and its datacentre carries out that instruction.' Perhaps this analogy is a little overstated given that the technology required to undertake the recording was entirely operated by Optus. All the user had to do was press a button, with no regard as to how this command would be achieved. In addition, in order to offer the service at all a considerable investment had to be made in receiving, recording and hosting equipment.

At para 80-81 Rares J emphasises that all that is achieved by the service is the outcome of time shifting as contemplated by s 111. See, in particular, para 81:

'If a person can watch a broadcast “near live”, away from a television, that may enable him or her to do something else. For example, the person may want to finish a task at work in the time it would take to travel home, because he or she knows that, once he or she finishes the task, he or she can view the broadcast “near live” when travelling home late or while still at work. Such a purpose is consistent with the definition of “private and domestic use”. Moreover, the rightholders accepted that pausing the contemporaneous recording of a broadcast to allow a user to do something else, even momentarily, can entail that the recording is made for use immediately after the viewer finishes the distracting event because that is a time more convenient than the time when the broadcast is made.'

These paragraphs seem to gloss over the point that what is really being talked about here is format rather than time shifting, and this is in essence, what is at the heart of the Optus business model, to get a slice of the internet and mobile devices market, which is exclusively licensed, for a large sum, to Telstra.


In response to the other questions, Rares J concluded that the user did the act of electronically transmitting the film, despite the use of Optus's equipment and services [para 95], and the communication was made to the user only and not 'to the public' [para 100] . Rares J also had to deal with the conclusion in Telstra Corporation Ltd v APRA (1997 HC) (the music on hold case) that if a work is communicated in circumstances where the copyright owner can expect a fee, the communication is made "to the public" regardless of whether it is made to only one person at a time'. [para 101] Rares J correctly recognises that: The TV Now service is part of Optus’ service that it offers to the market in order to attract and retain customers. As the business case for Optus’ decision to invest in the TV Now service recognised, the service would give it the significant market benefit of a leading position in the digital television industry and “delivers the customer value proposition ‘record and watch my favourite TV shows on the go’”. [para. 102] However, Rares J concludes that the communication of the recording to the user's device 'lacks the element of commercial detriment to the rightsholders' that had been present in the Telstra case. Thus, it could not constutite a communication to the public.

Finally, the digital file of the recording was not an 'article' or 'article or thing' withing the meaning of s 103 or s111(3)(d).

The Apple streaming technology was held to give rise to different issues to be considered separately.

Bram believes that there is plenty of scope to argue that whilst s 111 enables users to record material for viewing 'at a time more convenient than the time when the broadcast is made', time is not the only, nor perhaps even the main, matter to be considered here. Section 111 did not contemplate format shifting, that is dealt with in other sections of the Act.

The case has been appealed to the Full Federal Court.

ACMA Report: Online risk and safety in the digital economy

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.

Stormtroopers Helmet Not A Sculpture

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!

Australia's Digital Economy: Future Directions

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.