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  • joly 4:07 pm on 04/12/2012 Permalink | Reply
    Tags: , , , law   

    Brooklyn Law Incubator & Policy Clinic Legal Hackathon 

    BLIP Legal HackathonOn April 15, 2012, the Brooklyn Law Incubator & Policy Clinic (BLIP) hosted their first-ever Legal Hackathon. An all-day event, the Hackathon explorde how technology can improve the law and vice versa.

    Homepage: http://legalhackathon.johnrandall.com/wordpress/
    Twitter : @BLIPClinic | #LegalHack
    Questions : http://cyber.law.harvard.edu/questions/ Instance: NYCHack
    Webcast: http://legalhackathon.blipclinic.org/live-stream/


    Andrew Raziej

    Tim Wu

    Nina Paley

    Nick Allard

    Tim Hwang


    Hacking the Act: Why Do SOPA and PIPA Matter? Speakers: Lon Jacobs (News Corp), Derek Bambauer (BLS Professor), Robert Levine (Journalist/Author), and Amyt Eckstein (Moses & Singer)

    Government 2.0: A Primer on Crowdsourced Policymaking and Fostering Civic Engagement Through Technology.
    Speakers: Art Chang (Tipping Point), Sherwin Siy (Public Knowledge), John Bergmayer (Public Knowledge)

    Plus Andrew McLaughin (Tumblr), Tim Wu (FTC), Nina Paley (Question Copyright), Tim Hwang (Robot Robot and Hwang), and Jonathan Askin (BLS Professor and director of the BLIP Clinic)


    A week-long competition beginning the day of the Hackathon, interested teams will tackle a discreet issue of IP policy and collaboratively propose a new policy reform through online collaboration tool Docracy.


    Docracy is challenging participants to use their service to translate a legalese agreement into plain English using their service.

    PriView is hacking an assessment standard to help people better understand the privacy policies they deal with every day.

    Wikipedia will discuss the role of crowdsourcing in legal research

    WhyNot is brainstorming how to create a platform that will crowdsource the next Mayor of NYC.

    The Calyx Institute is challenging participants to hack a model privacy policy for Internet service providers.

    Creative Rights for Creative Children (CREATE) is hacking a new IP curriculum for students that properly accounts for creative privileges like fair use.

  • joly 4:43 am on 02/27/2012 Permalink | Reply
    Tags: , law, patry, ,   

    Video: Bill Patry “How to Fix Copyright” @dmwnews #DMFE12 Social Music Summit 

    Cory Doctorow has described Bill Patry’s book ‘How to Fix Copyright’ as “incandescent”. He also suggests that Bill is angry, something Bill himself denies. In this Social Music Summit ‘fireside chat’, in which Jim Griffin digs into Patry’s background, one can discern just how laid back – considering the cultural bomb he has just dropped – he really is.

  • joly 4:02 am on 12/13/2011 Permalink | Reply
    Tags: , , , , law, , , paul vixie, , ,   

    Video: What’s wrong with SOPA @StanfordCIS #SOPA #PIPA #netfreedom 

    On December 7 2011 the Center for Internet and Society at Stanford Law School hosted a panel discussion – What’s Wrong With SOPA? – on the evils of the proposed Stop Online Piracy Act (SOPA) currently before Congress.


    • Mark Lemley – William H. Neukom Professor of Law, Stanford Law School
    • Josh Mendelsohn – Partner, Hattery
    • David Ulevitch – Founder & CEO, OpenDNS
    • Paul Vixie – Chairman and Chief Scientist, Internet Systems Consortium
    • Fred von Lohmann – Senior Copyright Counsel, Google
    • Albert Wenger – Partner, Union Square Ventures


    • Anthony Falzone – Executive Director, Fair Use Project at the Center for Internet and Society

  • joly 1:18 am on 04/20/2011 Permalink | Reply
    Tags: , , law   

    Judge rules non-creative email not copyrightable #freeculture 

    OUTLAW.COM reports a recent court decision in Los Angeles where one Kenneth Stern had sued for copyright infringement after an allegedly libelous email to a listserv was leaked to its subject.

    Judge Dolly Gee said Stern’s email lacked originality and a copyright certificate he had obtained from the US Copyright Office was invalid as a consequence. The reproduction of Stern’s email was legitimate as it was in order to represent what Stern had written and not because it was a creative expression.

    ” [Stern’s] listserv post … displays no creativity whatsoever – its content is dictated solely by functional considerations. As [Stern] expression of his idea is indistinguishable from the idea itself, it is not entitled to copyright protection.” judge Dolly Gee said.

    Stern argued that he had considered alternatives to the email’s wording, but the judge said that “trivial” alternatives did not show that the finished email merited copyright protection.

    Judge Dee, stating that Stern had sought litigation in bad faith, awarded summary judgement for the defendants, and costs to be assessed.

  • joly 11:57 pm on 03/07/2011 Permalink | Reply
    Tags: domain seizures, , law,   

    Video: Rep. Zoe Lofgren vs Victoria Espinel on domain takedowns 

    On Mar 1 2011 the United States House of Representatives Committee on the Judiciary Subcommittee on Intellectual Property, Competition and the Internet held a hearing “Oversight of the Office of the U.S. Intellectual Property Enforcement Coordinator” wherein they grilled U.S. Intellectual Property Enforcement Coordinator Victoria Espinel, aka White House ‘IP Czar’. In the course of the proceedings Rep. Zoe Lofgren (D – CA) took Espinel to task on several counts concerning the recent ICE “Operation In Our Sites” domain seizures – due process; ignoring DMCA provisions; first amendment rights; fair use considerations; plus bumbled operations, receiving little more than platitudes in response. Video is here or below.

  • joly 2:47 am on 02/16/2011 Permalink | Reply
    Tags: COICA, , , , law, ,   

    U.S. Senate Hearing on seizing websites – 2/16 

    In contrast to Feb 15’s Hillary Clinton speech about Internet Freedom on Feb. 16 2011,  the Senate Committee on the Judiciary held a hearing entitled “Targeting Websites Dedicated To Stealing American Intellectual Property“. This was a followup to last year’s shelving of the COICA Act and the recent DHS-ICE site seizures – which some consider to be of dubious legality. Witnesses include representatives of the Authors Guild, Go Daddy, Verizon, and Visa. There was be a webcast.

    Witness Statements

    Tom Adams – Rosetta Stone Inc
    Scott Turow – Authors Guild
    Christine Jones – Go Daddy
    Thomas Dailey – Verizon
    Denise Yee – Visa

    Member Statements
    Patrick Leahy Chair
    Chuck Grassley
    Al Franken

  • joly 8:57 am on 01/12/2011 Permalink | Reply
    Tags: , , , law   

    Is there such a thing as “criminal contributory infringement”? #ICE #copyright #dns #freeculture 

    Mike Masnick of techdirt argues that recent seizures of domain names by Homeland Security’s Immigration & Customs Enforcement (ICE) group have dubious legal validity. Even the Supreme Court’s embrace of the concept of “inducement as contributory infringement” in the Grokster case didn’t contemplate it as criminal activity.

    The actual seizure itself was handled clumsily, using outside contractors. The tracking of visitors to the seized sites contrary to government policy led many observers to initially conclude the whole thing was an elaborate hoax. This was compounded by the ICE delaying public statements so they could make a splash on “Black Monday”. Techdirt further noted in December just how inept and flimsy the case against one site – torrent-finder – was. If the standard – commercial sites that link to web items that advocate or facilitate filesharing – was applied across the board, the ICE would have to seize a large portion of the entire web!

    • joly 7:28 pm on 01/19/2011 Permalink | Reply

      Jan 19:

      ICE director John Morton said Tuesday. In “every single case,” federal investigators were able to obtain materials that infringe copyright from the websites that had their domain names seized, Morton said during a speech at the Congressional Internet Caucus’ State of the ‘Net conference.

      The operators of Torrent-finder.com, a BitTorrent search engine, and two hip-hop music blogs, have questioned why their domain names were seized. ICE and the DOJ “spent a lot of time” examining the websites, and the agencies did not honor all of the requests to take action that they received from copyright holders, Morton said.

      The owners of those sites can challenge the seizures in court, Morton added. The seizures have also started a lively debate about copyright protections in the U.S., and “that’s a good thing,” he added.

      [Source: Computerworld

      • joly 3:57 am on 02/08/2011 Permalink | Reply

        The video of this is now online:

        Morton starts talking about domain takedowns at http://www.youtube.com/watch?v=OWZY_LujUhc&feature=player_detailpage#t=328s

        • In all cases they obtained illicit goods via the sites before obtaining warrants.
        • He says they served the registries.
        • All seizures can be challenged in federal court.
        • After they seized 8 sites in June, 81 more sites shut down voluntarily.
        • One re-emerged under a different name. Working with UK police it was again shutdown.
        • Seizure banners have received 25m hits. Some sites got more hits after seizure.
        • After 131 referrals from industry they enforced 81 in November. (81 obviously a magic number)
        • Pirates don’t pay taxes or health care, invest in America.
        • Criticism provides publicity which is helpful..
        • Not interested in limiting speech or due process
        • Internet is not above the law.

        Then, in answer to question, about whther this set a bad example for Internet freedom in other countries.

        • All except 5 sites were selling counterfeit hard goods.
        • In the case of the 5 sites, special care taken to establish 1) content is illicit, and 2) knowingly supplied, in order to obtain court order.
  • joly 4:02 am on 12/15/2010 Permalink | Reply
    Tags: , law,   

    EFF: Appeals Court Holds that Email Privacy Protected by Fourth Amendment #privacy 

    EFFKevin Bankston of the EFF reports a landmark decision issued today in the criminal appeal of U.S. v. Warshak, the Sixth Circuit Court of Appeals has ruled that the government must have a search warrant before it can secretly seize and search emails stored by email service providers. Closely tracking arguments made by EFF in its amicus brief, the court found that email users have the same reasonable expectation of privacy in their stored email as they do in their phone calls and postal mail.

    The court held,

    Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection…. It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve…. [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call–unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement..

    The decision essentially invalidates the Stored Communications Act, so it will either be appealed up to the Supreme Court, or Congress shall have to do some fixing.

    •  Decision pdf
  • joly 2:53 pm on 12/08/2010 Permalink | Reply
    Tags: , , law,   

    CommLawBlog: Genachowski between rock and hard place on Net Neutrality #fcc #netneutrality 

    As the FCC’s vote on Chairman Julius Genachowski’s proposed Open Internet order approaches on Dec 21, Christine E. Goepp of CommLawBlog has written a brief analysis that concludes he and his staff’s options are very narrow, with opposing forces on either side that are unlikely to compromise. Even if Commissioners Copps and Clyburn compromise on Title II and go along, congressional support and judicial validation are a remote prospect.

    She concludes:

    .. the future of the agency’s regulatory clout looks very different depending on whether it can or can’t regulate IP-based communications. Clearly, the FCC’s practical ability to regulate services that perform telecommunications (Title II) and television (Title III) functions is likely to shrink as these types of services become increasingly delivered over IP connections. The Chairman’s legal staff is working hard to frame a case for delegated authority over ISPs that doesn’t rely on reclassification or Congress; but it doesn’t have a lot to work with.

  • joly 1:48 am on 11/29/2010 Permalink | Reply
    Tags: , , , law, viacom, ,   

    Video: Why Viacom v. YouTube Matters (Besides the $1 Billion) 

    The Copyright Society of the U.S.A. New York Chapter Panel: Why Viacom v. YouTube Matters (Besides the $1 Billion) at the Princeton Club NYC on Nov 18 2010. While YouTube won a summary judgement in this case, it is under appeal. The panel was tasked, rather than making appellate cases, with discussing the implications of the decision. Nevertheless much of the meat of the arguments was chewed at this lunchtime event.

    Panel: Cliff Sloan (Partner, Skadden Arps), Daniel Blackman (Co-founder, Howcast, and formerly of Google), Michael Kwun (Of Counsel, Keker & Van Nest), Thomas Sydnor (Director of the Center for the Study of Digital Property at The Progress & Freedom Foundation), Moderated by Professor James Grimmelmann (New York Law School)

    download: iPod | mp3

  • joly 12:47 pm on 06/28/2010 Permalink | Reply
    Tags: , law, , scotus   

    Supreme Court on Bilski – no but whatever.. 

    The Supreme Court opinion in re:Bilski is in.  With typical ambivalence it upheld the federal court’s decision while rejecting it’s reasoning, replacing the machine-or-transformation test with essentially no test at all. The Court rejected the patent just because it was an “abstract idea”. From the syllabus:

    The machine-or-transformation test is not the sole test for patent eligibility under §101. Although that test may be a useful and important clue or investigative tool, it is not the sole test for deciding whether an invention is a patent-eligible “process” under §101. In holding to the contrary, the Federal Circuit violated two principles of statutory interpretation: Courts “‘should not read into the patent laws limitations and conditions which the legislature has not expressed,’” Diamond v. Diehr, 450 U. S. 175, 182, and, “[u]nless otherwise defined, ‘words will be interpreted as taking their ordinary, contemporary, common meaning,’” ibid. The Court is unaware of any ordinary, contemporary, common meaning of “process” that would require it to be tied to a machine or the transformation of an article.
    . . .
    Because petitioners’ patent application can be rejected under the Court’s precedents on the unpatentability of abstract ideas, the Court need not define further what constitutes a patentable “process,” beyond pointing to the definition of that term provided in §100(b) and looking to the guideposts in Benson, Flook, and Diehr. Nothing in today’s opinion should be read as endorsing the Federal Circuit’s past interpretations of §101.

    So this would seem to leave the whole question of software patents as wide open as ever.

    Opinion is at http://www.supremecourt.gov/opinions/09pdf/08-964.pdf

    • Seth Johnson 2:26 pm on 07/03/2010 Permalink | Reply

      The machine-or-transformation test is a hack that diverts attention from the right understanding of software and patentability. I actually see this ruling as helpful in its not relying on that. It essentially pushes us to make the argument against software patents based on their being abstract ideas. By finding the machine-or-transformation principle not sufficient and by not finding an exclusion on business method patents, the court actually pushes us to making the right point.

      Below are comments I posted on the following article. I posted a couple of followup responses there:

      Software patents are patents not just on abstract ideas, but on *pure* abstract ideas. By pure I don’t mean “extremely” — I mean “independent of empirical facts or particulars,” like math.

      The general purpose logic processor does *pure* logical operations; it follows that the instructions provided to that processor are likewise *pure* logic. However, what translates a pure logical algorithm or process to something of specific use is the devices you attach to the logic processor. It is in principle perfectly conceivable that the *exact same* set of logic instructions could control *entirely different* processes, depending on what devices you attach.

      And while higher-level, human-readable code uses language that humans can relate to specific things or uses in the empirical world (variable names like “PartNo” or “EmployeeID” or “Chemical1Proportion,” or function names like “InitiateStirring” or “TurnOnBlender”), at bottom the compiled code provided to the processor is pure logical abstraction.

      The point is, the software is in principle not patentable, though it may be true that a particular empirical process that that code is being used to control, is patentable. But what decides that is the empirical process as such, not the pure algorithm expressed by the code.

      So I see this ruling as simply excluding the easier resolution to the software patent issue (an approach not really on point and not really addressing the nature of the issue of software patents) that sees software patents becoming untenable along with the invalidation of business method patents, as well as the notion that what makes something patentable is that it is a machine or a transformation.

      What makes software unpatentable is not really directly related to either of those points, but rather to the fact that it is *pure* abstraction. You don’t have to say patents only cover machines and transformations to eliminate software patents. Instead, all you have to do is show that software is always abstract because the nature of the logic processor is inherently pure — it deals only in bits/numbers and logical and mathematical operations and algorithms — and when one says those numbers and algorithms are intended to refer to or apply to something more, what you’re really saying is that there’s also an empirical process, alongside the pure code, which is the actual process which may be patentable or not.

      The distinction that counts isn’t between machines or transformations and software; it’s between pure abstraction, such as logic and math (which is definitively abstract because it is pure), and plain vanilla abstraction in the form of general principles about empirical reality, such as physical laws (which is a kind of abstraction regarding which the lines between patentability and non-patentability are harder to draw — the machine-or-transformation test is an example that gets kind of close, but doesn’t really make the right point).

    • Seth Johnson 5:06 pm on 07/07/2010 Permalink | Reply

      Now see what’s happened?

      USPTO, post-Bilski: A strong presumption against abstract ideas:

  • joly 10:34 pm on 04/20/2010 Permalink | Reply
    Tags: , , , law,   

    Open Source Database Licensing Panel – NYC 4/21 

    The Institute for Information Law & Policy and the International
    Intellectual Property Society present: Open Source Database Licensing

    Date: Wednesday, April 21, 2010
    Time: 5:00 p.m. to 7:00 p.m.
    Location: NY Law School 185 West Broadway NYC Room W201
    RSVP: Naomi Allen at naomi.allen*at*nyls.edu. Refreshments will be served.

    Database owners are increasingly seeking ways to make their data
    available so that others can contribute to and build on their work. This
    “open data” movement emphasizes the importance of sharing data for both
    scientific development and humanitarian response. The willingness of
    database owners to make their data available for re-use depends on their
    ability to impose conditions on that release, which requires
    consideration of the varying levels of copyright protection afforded to
    databases across jurisdictions.

    Please join us for a panel presentation focusing on the challenges
    associated with balancing the advantages of “open data” with the need
    for database owners to impose conditions on release. The speakers will
    address the current state of copyright protection afforded to databases
    and strategies for encouraging database sharing.

    Janelle C. Bonanno, Graduate Research Fellow, New York Law School
    Christopher Cotter 3L, New York Law School
    Rachel DeLetto, Graduate Research Fellow, New York Law School
    Cynthia Grady 2L, New York Law School
    Chris Holmes, The Open Planning Project; Chair, Project Steering Committee, GeoServer
    Molly Beutz Land, Associate Professor of Law, New York Law School
    James Vasile, Software Freedom Law Center; Board Member, Open Source Matters

  • joly 9:21 pm on 04/14/2010 Permalink | Reply
    Tags: law,   

    Digital Due Process Coalition demands reform of ePrivacy statutes 

    Digital Due Process The Digital Due Process Coalition brings to gether such unlikely bedfellows as CDT, Google, AT&T, Microsoft, Yahoo!, AOL and the ACLU, along with some lawyers that ISOC-NY webcast viewers will be well familiar with like Susan Crawford, James Grimmelmann, Frank Pasquale, & David Post, united in the purpose of advocating reform of The Electronic Communications Privacy Act (ECPA) of 1986.

    The ECPA is the statute under which the federal government can snoop into your email, and enforce co-operation in its efforts from ISPs. The move to cloud computing has nullified many of the protections in the act, and providers are facing increasing demands for access from law enforcement. The DDPC is demanding an overhaul of the statute, and a return to due process = warrants before they hand over users missives.

  • joly 9:31 pm on 04/13/2010 Permalink | Reply
    Tags: , , law,   

    Mobile App Legal Concerns Panel – New York Law School 4/20 

    Ever since the Apple launched the App Store on the iPhone, people have been crazy about mobile apps. As a result, apps are now widely available on the Android, Blackberry, and many other mobile phone platforms. A developer must consider issues concerning contract law, intellectual property protection, corporate law and user privacy when creating a new app. This panel will discuss the legal concerns that every mobile app developer should consider before bringing a new app to market.
    Moderator: Jonathan Lutzky, Esq., Masur Law
    Room: W201 6-8pm, Event begins at 6:30, Tuesday 4/20
    Panelists: Simon Buckingham,  Mobile Streams Appitalism
    Dan Cohen, DaDa Mobile and Playme.com
    Hugh Dornbush, omgicu
    Kunal Gupta, Polar Mobile
    RSVP to Brian Daitzman: brian.daitzman@law.nyls.edu
  • joly 6:25 am on 04/02/2010 Permalink | Reply
    Tags: , law,   

    Attorney/Client Privilege Trumps Company E-Mail Surveillance 

    The New Jersey Supreme Court on Tuesday gave workers in New Jersey an assurance of privacy in using workplace computers to talk with their lawyers, ruling a company’s e-mail-monitoring policy yields to the attorney-client privilege.

    Chief Justice Stuart Rabner, writing for the unanimous court in Stengart v. Loving Care Agency Inc., A-16-09, said a plaintiff in an employment discrimination suit against her employer had a reasonable expectation that e-mails to and from her attorney on her personal Yahoo account would be private, although transmitted via a company-owned laptop.

    While finding the employer’s policy ambiguous in its reach, Rabner said that “even a more clearly written company manual — that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney-client communications, if accessed on a personal, password-protected e-mail account using the company’s computer system — would not be enforceable.”

    Via Privilege Trumps Company E-Mail Surveillance.

  • joly 6:11 pm on 03/06/2010 Permalink | Reply
    Tags: , law, Live365, ,   

    Live365 suit to oust Copyright Royalty Board lives, just! 

    Kevin Goldberg reports on the ongoing case in which webcaster Live365 is challenging the constitutionality of the Copyright Royalty Board (CRB), and with it the recently confirmed statutory webcasting rates.

    Last year an opinion by Judge Kavanaugh opened the door. Live 365 jumped on it, using an arcane argument over the method of appointment of the CRB. They filed for a preliminary injunction.

    At a recent hearing Judge Walton rejected that request. He did not throw out the case, however, despite his opinion that there was a “substantial” chance of it’s failure.

    Kevin notes that it is likely that, if the case proceeds, it could eventually end up again in the hands of the more sympathetic Judge Kavanaugh.

    There is no “bright line” to follow in such cases with the Supreme Court having ultimately decided similar conflicts on a case-by-case basis.

    Department of the Inferiors? Copyright Royalty Board Judges Are OK With That. : CommLawBlog.

  • joly 4:46 am on 02/25/2010 Permalink | Reply
    Tags: , , , law   

    Movie studios appeal against iiNet piracy exoneration 

    The Australian Federation Against Copyright Theft AFACT today lodged an appeal against the legal judgment which found Australian Internet provider iiNet was not responsible for illegal movie downloads by its customers, arguing the Federal Court had erred on 15 grounds

    “The court found large scale copyright infringements proven, that iiNet knew they were occurring, that iiNet had the contractual and technical capacity to stop them and iiNet did nothing about them,” said Neil Gane, executive director of AFACT.”In line with previous case law, this would have amounted to authorisation of copyright infringement.”

    via Movie studios appeal against iiNet piracy ruling.

    • joly 5:32 pm on 02/25/2010 Permalink | Reply

      More details of AFACT’s grounds for appeal are here.

      Central to the appeal is an argument that the judge applied an incorrect test for whether iiNet “authorised” the copyright infringement.

      Also AFACT will:

      • seek to overturn the ruling that iiNet had a repeat infringer policy that allowed it to claim safe harbour under the Copyright Act.

        • challenge Justice Cowdroy over his reasons for rejecting evidence.
        • raise further questions over what could be inferred from iiNet’s choice of witnesses. The film industry had questioned in the trial why staff with more intimate technical knowledge of the iiNet network were not called on to give evidence.
      • question the number of infringements, which was a contentious issue in the case.
    • joly 3:45 am on 02/26/2010 Permalink | Reply

      I thank Paul Brooks for the following info:

      Five ways AFACT lost-the-iiNet case

      I won’t quote the whole article, but one section jumped out to me as being of special relevence to this group (emphasis added by me):

      2. The time didn’t fit the crime

      AFACT put forward an argument that because iiNet had failed to stop users infringing copyright on its network, it had “failed to take reasonable steps” to gain protection under safe harbour provisions of the Copyright Act.

      But as John Fairbairn, partner at Clayton Utz points out, AFACT “held out” on defining what reasonable steps would have been beyond disconnection of a customer.

      As such, there were “no other reasonable steps” the judge could focus on.

      The Court found that iiNet’s only power to prevent infringement – to terminate users – was not a relevant power under the Copyright Act.

      Justice Cowdroy then found that cutting off access was not a reasonable step.

      “The Court does not consider that warning and termination of subscriber accounts on the basis of AFACT Notices is a reasonable step,” Cowdroy’s judgement said, as it would “also prevent that person or persons from using the internet for all the non-infringing uses.”

      In doing so, Cowdroy gave full appreciation to the significance of internet access and what it means to Australians, and the role of the courts in determining infringement.
      …and later…

      “AFACT’s notices were found to be defective because they did not establish copyright infringement as AFACT kept its methodology secret, they did not have any assurance of their veracity or indemnify iiNet for reliance, and they did not make clear AFACT’s right to give them on behalf of copyright owners,” said Australian Digital Alliance’s Dawes.

      “Thus, iiNet was entitled to be sceptical about the claims being made. Therefore it had no ‘knowledge’ of the alleged infringements by its users.”

      Determinations of infringement are complex, Cowdroy’s judgement said, and should only be made by a court. To do otherwise, he said, would be “highly problematic.”


    • joly 5:18 pm on 03/18/2010 Permalink | Reply

      News comes today that iiNet have filed a notice of contention in the appeal


      The first issue iiNet is contending relates to Section 112E of the Copyright Act 1968, which states that a carriage service provider that “facilitates … a communication is not taken to have authorised any infringement of copyright in an audio-visual item merely because another person uses the facilities”.

      Cowdroy had said in his decision that he was bound to rule in line with the 2006 case, Universal Music Australia versus Cooper copyright case, in which the Full Court — on appeal — decided a critical factor was whether the service provider had knowledge of copyright breaches occurring on its facilities.

      The judge found that iiNet did have knowledge that infringements were occurring on its facilities, therefore the protections under 112E “ceased to have operation”.

      Cowdroy’s overarching decision was that iiNet had not authorised its customers’ infringements, which meant in terms of his final decision the point was moot. Yet it may come into play in the upcoming appeal process in which the legal teams of both sides will contest iiNet’s alleged authorisation of its customers’ breaches.

      The second point of contention was Cowdroy’s decision that privacy provisions under the Telecommunications Act did not prevent iiNet from using its customer information to assist AFACT’s investigations. The question here was whether iiNet had the power to prevent infringements on its network and whether it took “reasonable” steps to prevent this from occurring.

  • joly 3:40 am on 02/23/2010 Permalink | Reply
    Tags: carl malamud, , law,   

    The Law.Gov Movement: Panel Discussion @NYU – weds 2/24/10 

    Wednesday, February 24th, 6:15-8pm
    The Law.Gov Movement: A Panel Discussion
    New York Law School
    Room A700

    Join the NYU IILP as they welcome Internet pioneer Carl Malamud, President and Founder of Public.Resource.Org, to discuss the Law.Gov movement and it’s opportunities for citizens to help change the way we distribute America’s Operating System.  He will be joined by distinguished Information Law scholars Helen Nissenbaum and Nicholas Bramble.

    This event is open to the public.  Please RSVP to Naomi Allen at naomi.allen@nyls.edu.

  • joly 9:05 pm on 02/03/2010 Permalink | Reply
    Tags: , , law   

    Australian court absolves ISP from copyright policing 


    The studios had hired an online investigator firm to intercept
    BitTorrent traffic over 59 weeks and record instances of iiNet users
    downloading pirated movies.

    The barrister for the studios, Tony Bannon, said that iiNet failed to
    take any ‘‘reasonable steps’’ to combat copyright infringement.

    He said iiNet’s practice of forwarding infringement notices to police
    and stating in its terms and conditions that illegal downloading was
    not permitted – while not enforcing this rule – did not constitute
    reasonable steps.

    However, iiNet’s legal counsel, Richard Cobden, said privacy
    provisions in the Telecommunications Act prevented it from forwarding
    the studios’ infringement notices to customers.

    Cobden said the studios were trying to place an ‘‘unreasonable
    burden’’ on ISPs and that ‘‘we will not take on the rights holders’
    outsourcing of their rights enforcement’’.

    iiNet argued that it was not required by law to act on ‘‘mere
    allegations’’ of copyright infringement, that customers were innocent
    until proven guilty in court, and that the case was like suing the
    electricity company for things people do with their electricity.

    In a summary of his 200-page judgment read out in court this morning,
    Justice Cowdroy said the evidence established that iiNet had done no
    more than to provide an internet service to its users.

    He found that, while iiNet had knowledge of infringements occurring
    and did not act to stop them, such findings did not necessitate a
    finding of authorisation.

    He said an ISP such as iiNet provided a legitimate communication
    facility, which was neither intended nor designed to infringe

    “iiNet is not responsible if an iiNet user uses that system to bring
    about copyright infringement … the law recognises no positive
    obligation on any person to protect the copyright of another,” Justice
    Cowdroy said.

    • joly 11:13 pm on 02/03/2010 Permalink | Reply

      ISOC Australia has issued a media release applauding the ruling:

      ISOC-AU applauds today’s decision of the Australian Federal Court in
      the case of Roadshow Films Pty Limited v iiNET Limited. The Court
      found that iiNet, by failing to take any steps to stop infringing conduct,
      did not ‘authorise’ copyright infringement by certain iiNet users.. iiNet
      did not sanction, approve or countenance copyright infringement; they
      did no more than provide an Internet service to their customers.

      ISOC-AU believes the Internet is for everyone. ‘The Internet is an
      essential part of how Australians live, work and play‘, said Narelle
      Clark, Vice President of the Internet Society of Australia (ISOC-AU) ‘and
      the Court has confirmed that ISPs are not required to be the
      gatekeepers of Internet use‘.

      ISOC-AU also welcomes the finding of the Court that, because iiNet did
      have a repeat infringer policy, they would have been entitled to the
      protection offered by the ‘safe harbour’ provisions of the copyright

      ISOC-AU recognises that people should be rewarded for their creative
      endeavours and that other models may need to be used or developed to
      reward content creation and distribution. We also support the right of
      all to due process under law, particularly to ensure that Internet users
      are not arbitrarily cut off from Internet access.

      and also a couple of links:

    • Full text of the judgement
    • iiNet’s response
    • the film industry’s response
  • joly 9:43 am on 02/04/2010 Permalink | Reply

    Business Week

    “The ruling will serve as a reference to similar cases in other jurisdictions,” said Charles Mok, chairman of the Internet Society’s Hong Kong division. “This case shows that if an Internet service provider can demonstrate it has put in place a mechanism for dealing with complaints from content owners, then the law will afford an adequate safeguard.”

  • Joly 1:10 am on 02/08/2010 Permalink | Reply

    A post courtroom interview with iiNet CEO Michael Malone, refers to conciliatory comments he had just made where he suggested that the movie companies work with him to find ways for his customers to legally download their works.

    It is to be noted that iiNet, which has bandwidth caps for customers, already operates a ‘freezone’ of locally hosted content that can accessed without limit – adding a PPV section would be no great leap.

  • joly 3:46 pm on 02/01/2010 Permalink | Reply
    Tags: , , law   

    Fordham Symposium: Hate Versus Democracy on the Internet 3/26/10 

    Fourth Law and Information Society Symposium: Hate Versus Democracy on the Internet

    Date: 03.26.10 Fri
    Time: 9:00 a.m. – 5:00 p.m.
    Location: Pope Auditorium, Fordham Law School
    113 West 60th Street
    New York, NY
    Sponsor: Center on Law & Information Policy

    From political blogs to the exposure of rights abuses, the Internet advances communication and the free flow of information that is at the heart of democracy. Yet, from Holocaust deniers to terrorist organizers, the Internet also serves as an enabler for extremists promoting hate, violence and the corrosion of democratic values. This conference will explore the legal and policy dimensions of the Internet’s dual impact.

    The conference is free and open to the public. 6 Non-Transitional, Professional Practice NYS CLE Credits are available for $90 ($50 for Fordham Law alumni & public interest attorneys). If you desire CLE credit please register online and complete and submit a copy of the PDF registration form provided.

    Register/ agenda: here

  • joly 12:13 am on 02/01/2010 Permalink | Reply
    Tags: law,   

    Journal on Telecommunications and High Technology Law 

    The JTHTL Article Archive is now open, with free, full-text, searchable, paginated PDF downloads of every piece published in the JTHTL, including full issues.

    About JTHTL

    A group of students, under the guidance of Professor Phil Weiser, founded The Journal on Telecommunications and High Technology Law (JTHTL) at the University of Colorado Law School in 2001. JTHTL has since established a position among the elite national technology and telecommunications law journals, featuring seminal moments in Internet policy such as former FCC Chairman Michael Powell’s articulation of the four Internet Freedoms and Professor Tim Wu&amp’s groundbreaking definition of Network Neutrality.

  • joly 12:43 am on 01/13/2010 Permalink | Reply
    Tags: , , , law,   

    Intellectual Property Laws In the Internet Age – Meetup 1/20/2010 

    What: Intellectual Property Laws In the Internet Age

    When: Wednesday, January 20, 2010 6:30 PM

    Price: $10.00 per person

    10 W. 18th St. 7th Floor
    New York, NY 10011

    Who owns your content on Facebook, Twitter, YouTube, LinkedIn? How do you protect your work from being stolen?

    Please join us at this one-day-only lecture and Q & A aimed at addressing these and other online issues and offering tips on how to protect what you have created and placed online.

    Come join other members from Web2Fem, and MeetUp groups From Traditional2Digital, Black Creatives, Digital Creatives to learn how to protect your work and get a chance to increase your professional network with other attendees.

    The event speaker, Kelly Kocinski, was an attorney and Development Director at Volunteer Lawyers for the Arts before forming her solo practice, which focuses on the needs of individual artists and small businesses with a specialization in Intellectual Property (IP) Identification and Protection. She is also a teacher in the Design Management program at Pratt Institute.

    Ms. Kocinski will discuss the state of copyright, trademark, and patent law and how the law is trying to catch up to the technological and content-based advancements of the online world. She will discuss how those working online — whether on social media sites, blogs, or web development — can protect their content, as well as insulate themselves from liability. Finally, there will be a group discussion and Q&A to specifically address the concerns of the audience.

    Space is very limited, please RSVP soon. Please answer the 3 questions when you RSVP; by doing so, you will receive a recap of the lecture shortly after the event. This should be a great event with lots of relevant info!

    RSVP at any of these Meetup groups:

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