ALRC Review of Classification

Here they are! The Terms of Reference for the ALRC Classification review. Submissions close 15 July 2011, so Bram suggests you read the Issues Paper and make a submission asap! You can also subscribe at the Review website to receive the update newsletter.

Update on Kookaburra case at Fortnightly Review

Here is a link to the latest edition of Fortnightly Review which updates the decision of the Full Federal Court in the EMI v Larrikin case.

Counting Your Chickens..tweet, tweet...

How many followers do you have on Twitter? How many people do you follow and how regularly do you check their tweets? The power users of Twitter may have vast numbers of followers according to Twitaholic, which lists Lady Gaga at number one, with 8,096,522 followers, followed by others such as teen sensation Justin Beiber with 7,130,026 followers, but how many of these followers actually access and read their tweets? In Australia, Kevin Rudd still ranks at the top of the Australian list for number of Twitter followers at 945,418.

Similar questions may also arise with other social networking or blogging sites. According to Laurel Papworth, Australia’s social networking guru, in March 2010 there were about 1,950,000 people following the ACDC Facebook fan page and 1,132,000 following the Facebook fan page for Bananas in Pyjamas, with many following alternative BiP fan pages.

How many of these followers or fans would be counted for the purposes of determining damages in defamation in the event of a defamatory tweet or post?

This question came before the UK High Court in November 2010 in the context of a public dispute over allegations of match fixing in the Indian Premier League (‘IPL’) by New Zealand cricketer (and former captain of the New Zealand team) Chris Cairns, from an account apparently maintained by Lalit Modi, Chairman and Commissioner of the IPL and Vice-President of the Board of Cricketing Control for India. Lodi had been suspended from these positions in April 2010 and ceased in September 2010. In this action, Chris Cairns v Lalit Modi, Cairns complained of the tweet, made on 5 January 2010, which was deleted 16 hours later from the Twitter page (the ‘Tweet’), and publication of the Defendant’s words in the online cricket magazine Cricinfo UK. The action in November only concerned the issue of the extent to which the Tweet was read in England and Wales.

Whilst the question of extent of publication is relevant to damages, the Defendant in this case had sought to have the order that service of the proceedings out of the jurisdiction be set aside on the grounds that the plaintiff had not established (with respect to the Tweet) that a ‘real and substantial tort’ had occurred within the jurisdiction. The Court was presented with two sets of expert evidence. Dr Laurence Godfrey, well-known expert on internet defamation and litigant in the Use-Net related defamation cases in multiple jurisdictions, was instructed by the Plaintiff. Godfrey initially identified how a tweet may be distributed, directly and indirectly, for example, by re-tweeting or posting on other websites. He estimated that the Tweet would have been received by between 200 and 800 followers within the jurisdiction. He indicated an even higher number would have received the Tweet by indirect means, but did not given any estimate of an exact figure.

Mr Henderson, instructed by the defendant, provided a much smaller estimate of about 90 followers within the jurisdiction, a figure he then discounted by half to reflect the probability that half of this number would not have in fact read it or not seen it for other reasons. Therefore he arrived at a total figure of thirty readers in the jurisdiction. Following this statement and other information provided by Henderson, Godfrey revised his own figures down to a number of around 100 readers.

Further Lucy Middleton, a solicitor for the Defendant had attempted to contact the individuals within the jurisdiction who were potential readers of the Tweet to ascertain if they had, in fact, read the Tweet. She provided evidence to the Court that she had not been able to find contact details for the majority of potential readers. Of those she did mange to speak to, only two people confirmed that they had read the Tweet and one of those stated that he had been in Hong Kong at the relevant time.

Mr Justice Tugendhat accepted the arguments made on behalf of the plaintiff that despite the relatively small number of followers and the removal of the Tweet after sixteen hours, due to the sensational and topical nature of the Tweet, it would be reasonable to infer that the publication in the jurisdiction of the Tweet was much wider than the number of direct followers. There remained a real threat of wider publication.

Tugendhat J observed: ‘A claimant’s primary concern in a libel action is vindication, not damages for what has been suffered in the past. So the damage that has occurred before the action is brought may not give an indication of the importance of the claim. Vindication includes a retraction, or a verdict for the claimant, or a judgment to the effect that the allegation complained of is false. If one of these is achieved, then it may be unnecessary to pursue a further remedy by way of injunction. So a claimant can legitimately and reasonably pursue a claim where the publication that has already occurred is limited, when his purpose is to prevent, or at least limit, further publication to a similar effect being made in the future. But that is subject to there being a real prospect of further publication if the action is not pursued. A retraction or judgment in favour of a claimant can be expected to have the effect of preventing or limiting republication, even if a claimant is not asking for an injunction.’

Duty to Play: virtual worlds research and ethics

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

New law to restrict manga content in Japan...

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

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

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

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.